Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations: (i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent. (ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian. (iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files. (iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control. (v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files. (vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower. (vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action. (viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 7 contracts
Samples: Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Senior Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall performand the Backup Servicer) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, on behalf the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent, the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iix) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)any Required Loan Documents, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a fireproof safe or fireproof file cabinet;
(specified on an accompanying Schedule of Collateral Obligations supplementx) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04;
(xi) directing the sale or substitution of Collateral Obligation File Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xiv) delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, and Updated Assigned Value in accordance with the terms hereof. Promptly upon hereof (including paying the receipt compensation of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.Nationally Recognized Valuation Firms); and
(iixvi) With respect to each Collateral Obligation File which has been or will complying with such other duties and responsibilities as may be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian required of the Secured Parties, Servicer by this Agreement. It is acknowledged and has no instructions to hold any Collateral Obligation File for the benefit of any agreed that in circumstances in which a Person other than the Secured Parties Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and undertakes to perform agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such duties and only such duties as are specifically set forth performance would conflict with or result in this Agreement. In so taking and retaining custody a breach of any of the Collateral Obligation Filesexpress terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance (b) have determined that there is no other commercially reasonable performance that it could render consistent with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession express terms of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody Loan Agreements which would result in all or a portion of all Collateral Obligation Files in its possession in secure facilities the servicing duties being performed in accordance with customary standards for this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such custody and shall reflect in its records the interest non-performance including performing as much of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at servicing duties as possible and performing such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents commercially reasonable or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance similar duties consistent with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlLoan Agreements.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 5 contracts
Samples: Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.), Loan and Servicing Agreement (Solar Senior Capital Ltd.), Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Custodian Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Agent shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and without any whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian Agent is unable to confirm the Review Criteria, the Collateral Agent shall send notice within one (1) Business Day notify the Collateral Manager and the Borrower of such receipt determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and each Lender such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesUnderlying Instruments, the Collateral Custodian Agent shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties as agent shall be released from the possession of the Collateral Custodianlimited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Loan Documents that are originals shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records fire resistant vaults, rooms or cabinets at the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession offices of the Collateral Agent (other than documents delivered electronically) set forth in Section 5.5(c). All Required Loan Documents shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian Agent shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesAgent.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian Agent shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, the Agent’s written instructions such Loan shall controlcease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the case Administrative Agent deems necessary or desirable in order to exercise or enforce any of the Borrower rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Collateral Manager, or a Responsible Officer, in Borrower which conflict with any instructions received by the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation FilesAgent shall rely on and follow the instructions given by the Administrative Agent.
(vi) In The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the event that (i) Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, any Agent, the Borrower and Collateral Manager, the Collateral Custodian or Manager within one (1) Business Day of receipt by the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within Management Report and the parties shall reconcile such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowerdiscrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Custodian in writing Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian Agent hereunder, the Collateral Custodian Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that .
(xvi) Nothing herein shall prevent the Collateral Custodian shall not be required Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to take any action hereunder at Person.
(xvii) Concurrently herewith, the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of Administrative Agent directs the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from Agent is authorized to enter into the Agent within ten (10) Business Days Sale Agreement and the Securities Account Control Agreement. For the avoidance of its receipt of such requestdoubt, then all the Agent Collateral Agent’s rights, protections and immunities provided herein shall be deemed to have declined to consent apply to the relevant action.
(viii) The Collateral Custodian shall not be liable Agent for any action taken, suffered actions taken or omitted by it to be taken under the Sale Agreement and the Securities Account Control Agreement in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencecapacity.
Appears in 5 contracts
Samples: Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.)
Duties. The On or before the Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Required Receivable Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the The Collateral Custodian shall send notice of such receipt not have any responsibility for reviewing, inspecting or examining any Required Receivable File to determine that the Collateral Managercontents thereof are genuine, enforceable or appropriate for the Agent and each Lender Agentrepresented purpose or that they are other than what they purport to be on their face.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Required Receivable Files, the Collateral Custodian shall be deemed to be acting for as the purpose Bailee of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with enforceability of any Required Receivable File documents or the provisions existence, perfection or priority of Section 18.5, no Collateral Obligation File any Lien on the Required Receivable Files or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Receivable File documents that are originals or copies shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure fire resistant facilities in accordance with the Collateral Custodian’s customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets custody, at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation All Required Receivable File documents that are originals or copies shall be marked with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesaccess.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Servicing Report in accordance with Section 2.6 (the “Payment Duties”).
(v) On the third Business Day of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall control.
Borrower and the Servicer (v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in a form acceptable to the case of the Borrower or Administrative Agent and the Collateral Manager, or a Responsible Officer, Custodian) an updated list of Receivables in the case of the Agent, concerning the use, handling its possession and disposition of the Collateral Obligation Filesan updated exceptions report.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided similar collateral that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionholds as collateral custodian for others.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 4 contracts
Samples: Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.)
Duties. The Collateral Custodian Manager shall performtake or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on behalf the Collateral from time to time, all in accordance with Applicable Law and the Collateral Manager Standard. Subject to the terms of this Agreement (including Section 11.04 and Article VI), the Collateral Manager has the sole and exclusive authority to make any and all decisions with respect to the Collateral and take or refrain from taking any and all actions with respect to the Collateral. Without limiting the foregoing, the duties of the Secured Parties, Collateral Manager shall include the following duties and obligationsfollowing:
(i) The supervising the Collateral, including communicating with Obligors, executing amendments, providing consents and waivers, exercising voting rights, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent and the Custodian, ) in respect of the servicing of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the duly appointed agent Administrative Agent or any Lender may reasonably request and which can be obtained without any undue burden or expense pursuant to the Related Documents;
(iii) maintaining and implementing administrative and operating procedures (including an ability to recreate servicing records evidencing the Collateral in the event of the Secured Partiesdestruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior collection of the Collateral;
(iv) promptly delivering to the applicable Funding Date (but no more than three (3) Business Days after such Funding DateAdministrative Agent, except as set forth in Section 10.20)each Lender, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on Agent or the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval RequestCustodian, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, such information and that servicing records (including information relating to its performance under this Agreement) as the Collateral Administrative Agent, each Lender, the Custodian will provide or the Collateral Agent may from time to time reasonably request and which can be obtained without any undue burden or expense pursuant to the Related Documents;
(v) identifying each Collateral Loan in its internal servicing records to reflect the ownership of such Collateral Loan by the Borrower;
(vi) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be asserted by an Obligor with all information necessary for respect to any Collateral Loan (or portion thereof) of which it has actual knowledge or has received notice;
(vii) [reserved];
(viii) directing the Collateral Agent to credit make payments pursuant to the terms of the Payment Date Report;
(ix) assisting the Borrower with respect to the purchase and sale of and payment for the Collateral Loans and Eligible Investments;
(x) instructing any agent or administrative agent for each Collateral Obligation File Loan to remit all payments and collections with respect to such Collateral Loan (and, if an Obligor may make payments directly to the lenders under the Related Documents, to direct the Obligor with respect to such Collateral Loan to remit all such payments and collections with respect to such Collateral Loan) directly into the Collection Account Account;
(xi) delivering assignments and promissory notes to the Custodian;
(xii) complying with such other duties and responsibilities as may be required of the Collateral Manager by this Agreement; and
(xiii) assisting in the acquisition and sale of Collateral Loans and other Collateral in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent Article X and the Collateral Manager in a written notice at least thirty (30) days prior Standard; provided that, notwithstanding anything herein to such change. Each the contrary, neither the Collateral Obligation File Manager nor the Borrower shall be marked with an appropriate identifying label and maintained in such manner so as required to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from provide to any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions or Lender any documents or information that the disclosure of an Executive Officer, which would violate any confidentiality agreement or restriction. It is acknowledged and agreed that in the case of circumstances in which a Person other than the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order Manager acts as lead agent with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this AgreementLoan, the party receiving such service Collateral Manager shall promptly deliver or cause to be delivered to the other parties to this Agreement (perform its servicing duties hereunder only to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to a lender under the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it applicable Related Documents has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencedo so.
Appears in 4 contracts
Samples: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Asset Documents delivered by the Collateral Manager shall deliver, on or prior Seller pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and without any the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall send notice of such receipt to determine that (i) the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody Outstanding Asset Balances of the Collateral Obligation Filesit has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall be deemed to be acting for immediately notify the purpose Administrative Agent of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5such discrepancy, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
and (iiiii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation FileReview Criteria is not satisfied, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for within one Business Day notify the Secured Parties, (ii) hold all documents constituting Servicer of such Collateral Obligation File received by it for determination and provide the exclusive use and benefit Servicer with a list of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement non-complying Assets and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event applicable Review Criteria that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect they fail to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedingssatisfy. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian Servicer shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) have five Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for correct any action taken, suffered or omitted by it in accordance non-compliance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.Review
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.02 in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Tape and a hard copy of the Loan Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such delivery Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (to the extent required by the Required Loan Documents) are included, (C) if listed on the Loan Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Obligation Files is included, and without any (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan number and Obligor name, as applicable, with respect to such Loan is referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan with respect to which it has received Required Loan Documents is less than as set forth on the Loan Tape, the Collateral Custodian shall notify the Administrative Agent and the Borrower and the Borrower Advisors of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Borrower and the Borrower Advisors of such determination and provide the Borrower and the Borrower Advisors with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Borrower and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in set forth on Annex A to this Agreement, or at such other offices office as shall be specified to the Administrative Agent and the Borrower by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to the Borrower and its Affiliates and Subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Borrower and the Agent, Borrower Advisors (in a form mutually agreeable to the Agent’s written instructions shall controlAdministrative Agent and the Collateral Custodian) identifying each Loan for which it holds Required Loan Documents and the applicable Review Criteria that any Loan fails to satisfy.
(vi) The Collateral Custodian shall accept only agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written instructions of an Executive Officer, request in the case form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower or the Collateral Managerhereunder, or a Responsible Officerto enable any of them to exercise or enforce any of their respective rights hereunder, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) including any rights arising with respect to Article VII. In the event that (i) the Borrower, Collateral Custodian receives instructions from the Collateral Agent, any Agent, the Collateral Manager, the Collateral Custodian Borrower Advisors or the Collateral Agent shall be served by a third party Borrower which conflict with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding instructions received by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtAdministrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(viiii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless an Authorized Person of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (FS Investment Corp II), Loan and Servicing Agreement (FS Energy & Power Fund), Loan and Servicing Agreement (FS Investment Corp II)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Administrative Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 4 contracts
Samples: Amendment No. 6 (HMS Income Fund, Inc.), Amendment No. 5 (HMS Income Fund, Inc.), Amendment No. 3 (HMS Income Fund, Inc.)
Duties. The From the Closing Date until its removal pursuant to Section 13.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 12.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar Senior Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 4 contracts
Samples: Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.), Loan and Servicing Agreement (Solar Senior Capital Ltd.), Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. The From the Closing Date until Restatement Date, the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Manager, Custodian shall notify the Agent and each Lender Agentthe Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Obligation File Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a document included within such Collateral Obligation File written request in the form of Exhibit N), as directed applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Agent in writingBorrower hereunder, which shall give a direction consistent or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with such determinationrespect to Article VII. Expenses of In the event the Collateral Custodian incurred as a result of such proceedings shall be borne receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the BorrowerAgent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(viiii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents that constitute Escrowed Assignment Agreement Documents at one of its offices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and from time to time upon notice to the Borrower, the Services Provider, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) five Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Services Provider and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such receipt documents shall have been delivered by the Borrower to or otherwise made available to the Collateral Manager, the Agent and each Lender Administrative Agent).
(ii2) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Affiliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence Borrower or Services Provider hereunder or under any other Transaction Document.
(5) The Collateral Custodian shall have no obligation to review or verify whether the Borrower or the Services Provider on its behalf has obtained and delivered (or made available to the Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of an Event of DefaultCollateral Obligations hereunder, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless and the Collateral Custodian has received written notice from shall have no obligation to maintain the Agent, Collateral Manager or Transaction Data Room on behalf of the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, unless otherwise expressly agreed by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencewriting.
Appears in 3 contracts
Samples: Credit Agreement (Blue Owl Technology Finance Corp.), Credit Agreement and Margining Agreement (Blue Owl Technology Income Corp.), Credit Agreement (Owl Rock Technology Income Corp.)
Duties. The Collateral Until its removal pursuant to Section 13.9, the Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon With respect to each delivery of Required Loan Documents, the Borrower shall provide or cause to be provided a related Loan Checklist to the Custodian with respect to such Required Loan Documents that are being delivered.
(ii) Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Custodian shall review the Required Loan Documents delivered to it (as identified on the related Loan Checklist) to confirm that (A) the Obligor name matches the Obligor name identified on the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Custodian and (D) the related Outstanding Balance (based on a comparison to the note or assignment agreement, as applicable) matches the Outstanding Balance listed on the related Loan Checklist (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Custodian, in connection with each delivery of Required Loan Documents hereunder to the Custodian, the Collateral Obligation Files Manager shall provide to the Custodian an electronic copy (in EXCEL or a comparable format acceptable to the Custodian, as applicable) of the related Loan Checklist that contains a list of the Loans, all related Required Loan Documents and without any whether they require original signatures, the Loan identification number, the Outstanding Balance of such Loan and the name of the Obligor with respect to each related Loan identified on such schedule. Notwithstanding anything herein to the contrary, the Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. At the conclusion of such review, the Collateral Custodian shall send notice of such receipt to provide the Collateral Manager, the Administrative Agent and the Borrower (with a copy to the Collateral Agent) a report in the form attached hereto as Exhibit L identifying each Lender AgentLoan for which it holds Required Loan Documents and the variances to the Review Criteria (the “Custodian Report”), which shall include (i) any discrepancies related to the Outstanding Balance of the Loans with respect to which it has received Required Loan Documents and the Outstanding Balance provided in the electronic file of the Loan Checklist, and (ii) any Review Criteria that is not satisfied. The Collateral Manager shall have twenty (20) Business Days after delivery of a Custodian Report to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any noncompliance by a Loan with any Review Criteria, the Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit L by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Custodian’s delivery of such report, the Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Custodian shall not have any responsibility for reviewing any Underlying Instruments or Required Loan Documents.
(iiiii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Collateral AgentAdministrative Agent and the Lenders; provided that the Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided further that the Custodian’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties as agent shall be released from limited to those expressly contemplated herein and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the possession of part of, the Collateral Custodian.
(iiiiv) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents that are originals shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office offices of the Collateral Custodian specified set forth in Annex A Section 5.5(c), or at such other offices office as shall be specified to the Administrative Agent and the Collateral Manager by the Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Collateral Obligation Files clearly segregated from Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit files of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlCustodian.
(v) On each Reporting Date, the Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Custodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Custodian Manager shall accept only have twenty (20) Business Days after receiving written instructions of notice thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation FilesEligible Loan until such non-compliance is cured.
(vi) The Custodian agrees, subject to Section 13.2(a)(vii), to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order for the Administrative Agent to exercise or enforce any of the rights of a Secured Party hereunder. In the event that (i) the Borrower, Custodian receives instructions from the Agent, Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other reasonable actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, ; provided that the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Custodian may conclusively rely on and shall be fully protected in acting upon any certificate (including any Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, letter, facsimile, electronic communication or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral Manager.
(ix) The Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 3 contracts
Samples: Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.22), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, Investment Manager and the Agent and each Lender Administrative Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 3 contracts
Samples: Loan Financing and Servicing Agreement (FS Investment Corp III), Loan Financing and Servicing Agreement (FS Investment Corp II), Loan Financing and Servicing Agreement (TCP Capital Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 3 contracts
Samples: Loan Financing and Servicing Agreement (BC Partners Lending Corp), Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Asset Documents delivered by the Collateral Manager shall deliver, on or prior Seller pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and without any the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such receipt discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Collateral ManagerSeller. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent and the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Asset Documents or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Asset Document shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 45 days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian All Required Asset Documents shall keep the Collateral Obligation Files be clearly segregated from any other documents or instruments in its filesmaintained by the Collateral Custodian.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the parties hereto acknowledging that the Turbo Period has commenced on the Turbo Effective Date) (the “Payment Duties”).
(v) On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in non-complying Assets and the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesapplicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the similar Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the it holds as Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 3 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Tape and a hard copy of the Loan Checklist, the Collateral Custodian shall review the Required Loan Documents delivered to it to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan number and Obligor name, as applicable, with respect to such Loan is referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Checklist which contains the Loan information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan with respect to which it has received Required Loan Documents is less than as set forth on the Loan Tape, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan which fails to satisfy any Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in set forth on Annex A to this Agreement, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan for which it holds Required Loan Documents and the applicable Review Criteria that any Loan fails to satisfy.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall accept only written instructions of an Executive Officernot have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, in and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the case other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the Borrower or foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Manager, Custodian shall not be required to exercise any discretion hereunder and shall have no investment or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesmanagement responsibility.
(vi) In the event that (i) the BorrowerIf, the Agent, any Agent, the Collateral Managerin performing its duties under this Agreement, the Collateral Custodian or is required to decide between alternative courses of action, the Collateral Custodian may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Custodian may, but shall be served by a third party with under no duty to, take or refrain from taking any type such courses of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedingsaction. The Collateral Custodian shall, shall act in accordance with instructions received after such two (2) Business Day period except to the extent permitted by lawit has already, continue in good faith, taken or committed itself to hold take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and maintain all independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(vii) Nothing herein shall prevent the Collateral Obligation Files Custodian or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests Granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(viiii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS Investment Corp II)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Services Provider shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServices Provider, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Services Provider in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServices Provider, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral ManagerServices Provider, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Facility Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Defaulta Facility Termination Event, Unmatured Event of DefaultFacility Termination Event, Unmatured Collateral Manager Services Provider Event of Default or Collateral Manager Event of Default Services Provider Event of Default unless the Collateral Custodian has received written notice from the Facility Agent, Collateral Manager Services Provider or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of DefaultFacility Termination Event,” “Notice of Unmatured Event of DefaultFacility Termination Event,” “Notice of Unmatured Collateral Manager Services Provider Event of Default,” or “Notice of Collateral Manager Services Provider Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of DefaultFacility Termination Event, Unmatured Event of DefaultFacility Termination Event, Unmatured Collateral Manager Services Provider Event of Default or Collateral Manager Services Provider Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Owl Rock Capital Corp), Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents Delivered in physical form at one of its offices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and from time to time upon notice to the Borrower, the Investment Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) five Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Investment Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such receipt documents shall have been delivered by the Borrower to or otherwise made available to the Collateral Manager, the Agent and each Lender Administrative Agent).
(ii2) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as Custodial Office and shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Affiliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence Borrower or Investment Manager hereunder or under any other Transaction Document.
(5) The Collateral Custodian shall have no obligation to review or verify whether the Borrower or the Investment Manager on its behalf has obtained and delivered (or made available to the Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of an Event of DefaultCollateral Obligations hereunder, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless and the Collateral Custodian has received written notice from shall have no obligation to maintain the Agent, Collateral Manager or Transaction Data Room on behalf of the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceBorrower.
Appears in 2 contracts
Samples: Credit Agreement (Apollo Debt Solutions BDC), Credit Agreement (Apollo Debt Solutions BDC)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Solar Capital Ltd.), Loan and Servicing Agreement (Solar Capital Ltd.)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A on the signature pages attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Fifth Street and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Fifth Street Finance Corp), Loan and Servicing Agreement (Fifth Street Finance Corp)
Duties. The Collateral Custodian From the Second Restatement Date until its removal pursuant to Section 8.5, the Trustee shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Trustee shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Required Loan Files delivered by the Borrower pursuant to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Section 3.2 hereof in accordance with the terms hereofand conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Trustee, for the benefit of the Secured Parties. Promptly upon the Within two Business Days of its receipt of any Required Loan File, the Trustee shall review such Required Loan File to confirm that (A) the loan documents and instruments in such Required Loan File have been properly executed and have no missing or mutilated pages, (B) there is evidence that UCC and other filings (to extent identified on the related Loan Checklist as being required by the Required Loan File) have been made, (C) if listed on the Loan Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) the related original Loan balance, Loan number and Obligor name with respect to such Loan is referenced on the related Loan Checklist and is not a duplicate Loan (based on the Loan number) (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Trustee, in connection with each delivery of Collateral Obligation Files Required Loan File hereunder to the Trustee, the Servicer shall provide to the Trustee an electronic file (in Microsoft EXCEL® or a comparable format) that contains the Loan number, Obligor name, original loan balance and without any the related Loan Checklist. At the conclusion of such review, the Trustee shall deliver to the Servicer, the Borrower and the Administrative Agent a collateral receipt in the form of Exhibit L attached hereto (a “Collateral Custodian Receipt”). If any Collateral Receipt discloses any deficiencies (a “Deficiency”) in any of the Required Loan Files, the Trustee shall send notice promptly notify the Administrative Agent and the Servicer of such receipt Deficiency and provide them with an exception report specifying the Loans which have a Deficiency and the Review Criteria that they fail to satisfy. The Servicer shall have fifteen (15) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by a Loan with any Review Criteria, the Trustee shall promptly notify the Borrower and the Administrative Agent of such determination by providing an updated exception report to such Persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within fifteen (15) Business Days of the Trustee’s delivery of such report, the Trustee shall return any Loan which fails to satisfy a Review Criteria to the Collateral ManagerBorrower or its designee. Other than the foregoing, the Agent and each Lender AgentTrustee shall not have any responsibility for reviewing, inspecting or examining any Required Loan File to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Required Loan Files, the Collateral Custodian Trustee shall be deemed to be acting for as the purpose Bailee of perfecting the Collateral AgentSecured Parties; provided that the Trustee makes no representations as to the enforceability of any Required Loan File documents or the existence, perfection or priority of any Lien on the Required Loan Files or the instruments therein; and provided further that, the Trustee’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties as agent shall be released from the possession of the Collateral Custodianlimited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Loan File documents that are originals or copies shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure fire resistant facilities in accordance with the Trustee’s customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets custody, at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Collateral Manager Servicer by the Trustee in a written notice delivered at least thirty (30) 45 days prior to such change. Each Collateral Obligation File All Required Loan Files shall be marked with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesaccess.
(iv) With respect On the third Business Day of each month, the Trustee shall provide to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions Servicer (in a form acceptable to the Administrative Agent and the Trustee) an updated list of the Agent, the Agent’s written instructions shall controlLoans in its possession and an updated exceptions report.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerperforming its custodial duties, the Agent, any Agent, Trustee shall use the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type same degree of levy, attachment, writ or court order care and attention as it employs with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files similar collateral that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File it holds as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowercustodian for others.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Revolving Credit Agreement (NewStar Financial, Inc.), Revolving Credit Agreement (NewStar Financial, Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 5.01(f) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within ten (10) Business Days of its receipt of the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Custodian shall review such Required Loan Documents to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC financing statements and other filings identified on the related Loan Asset Checklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included and (D) the stated balance, Portfolio Asset number and Obligor name, as applicable, with respect to such Portfolio Asset is referenced on the Loan Asset Schedule (such items in clauses (A) through (D) above, collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian a hard copy or an electronic copy of the related Loan Asset Checklist which contains the Portfolio Asset information with respect to the Required Loan Documents being delivered, Portfolio Asset number and without the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents for any Loan Asset shall be limited to the Review Criteria based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is not as is set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such receipt discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Portfolio Asset Servicer, the Calculation Agent and the Administrative Agent of such determination and provide the Portfolio Asset Servicer with a list of the non-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit E) by the Portfolio Asset Servicer and approved by the Majority Lenders within 10 Business Days of the Collateral ManagerCustodian's delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Required Loan Documents which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting and on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Loan Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The All Required Loan Documents delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Schedule III hereto, or at such other offices office as shall be specified to the Administrative Agent and the Portfolio Asset Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation File Custodian shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation Files clearly segregated from Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other documents or instruments in its filesLoan Asset Files delivered to the Collateral Custodian with any other files of the Collateral Custodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Majority Lenders.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall controlBorrower and the Calculation Agent (in a form mutually agreeable to the Administrative Agent (at the direction of the Majority Lenders) and the Collateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Carlyle Secured Lending III), Loan and Servicing Agreement (Carlyle Secured Lending III)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior Required Loan Documents delivered by each Borrower pursuant to the applicable Funding Date (but no more than three (3Section 5.01(f) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within ten (10) Business Days of its receipt of the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Custodian shall review such Required Loan Documents to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings identified on the related Loan Asset Checklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included and (D) the stated balance, Portfolio Asset number and Obligor name, as applicable, with respect to such Portfolio Asset is referenced on the Loan Asset Schedule (such items in clauses (A) through (D) above, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian a hard copy or an electronic copy of the related Loan Asset Checklist which contains the Portfolio Asset information with respect to the Required Loan Documents being delivered, identification number and without the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents for any Loan Asset shall be limited to reviewing such Required Loan Documents based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such receipt discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Portfolio Asset Servicer, the Calculation Agent and the Administrative Agent of such determination and provide the Portfolio Asset Servicer with a list of the non-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit E) by the Portfolio Asset Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral ManagerCustodian’s delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Required Loan Documents which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Required Loan Documents and any other Loan Asset Files, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting and on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Loan Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Schedule III hereto, or at such other offices office as shall be specified to the Administrative Agent and the Portfolio Asset Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation File Custodian shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation Files clearly segregated from Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other documents or instruments in its filesLoan Asset Files delivered to the Collateral Custodian with any other files of the Collateral Custodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall controlBorrower and the Calculation Agent (in a form mutually agreeable to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.), Loan and Servicing Agreement (TCG BDC II, Inc.)
Duties. The Until its removal pursuant to Section 5(e), the Collateral Custodian shall perform, perform on behalf of the Collateral Agent and the Secured Parties, the following duties and obligations:
(iA) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files Required Asset Documents delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with by any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Pledgor in accordance with the terms hereofand conditions of this Pledge Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Collateral Agent as collateral agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review such Required Asset Documents to confirm that (A) such Required Asset Documents, to the extent indicated on the Asset Checklist, have been executed and, on their face, have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) are contained in the Asset File and have a file stamp set forth thereon, (C) a certificate of insurance (as set forth on the Asset Checklist) is contained in the Asset File, and (D) the related Asset identification number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the Asset Checklist and without any the related Asset List that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. At the conclusion of such review, the Collateral Custodian shall send notice of deliver a receipt in the form attached hereto as Exhibit 5(b). The Servicer and the related Pledgor shall use commercially reasonable efforts to correct any non-compliance with a Review Criteria identified on such receipt to the Collateral Manager, the Agent and receipt. Two times each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodiancalendar month, the Collateral Custodian shall deliver to the Servicer and the Collateral Agent an exception report identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Collateral Agent or as otherwise directed by the Collateral Agent within ten Business Days of the Collateral Custodian’s delivery of such exception report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the applicable Person; provided that no such approval or direction of the Collateral Agent shall be required after the occurrence of the Credit Agreement Termination Date so long as (i) the Collateral Agent shall continue to have a first priority perfected security interest in the Asset so returned and any Proceeds thereof, and (ii) the Servicer, in requesting the return of such Asset, is acting exclusively as in good faith consistent with past practice. Other than the custodian foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents; provided further, that (x) by requesting the return of any Asset after the occurrence of the Secured PartiesCredit Agreement Termination Date pursuant to this Section 5(b)(ii)(A), the Servicer represents and warrants that clauses (i) and (ii) of the foregoing proviso are true and correct in all material respects, and has (y) the Collateral Custodian shall have no instructions to hold any Collateral Obligation File duty, obligation or responsibility for the benefit of any Person other than the Secured Parties and undertakes to perform making such duties and only determination or verifying that such duties as matters are specifically set forth in this Agreement. true.
(B) In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession agent of the Collateral Agent (other than documents delivered electronically) and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be maintained limited to those expressly contemplated herein.
(C) All Required Asset Documents kept by the Collateral Custodian shall be kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule 5(b) attached hereto, or at such other offices office as shall be specified to the Collateral Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked with an appropriate identifying label electronically tracked and maintained in such a manner so as to permit retrieval and access by access. All notes and Loan Registers included in the Pledged Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files be clearly electronically or physically segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, maintained by the Collateral Custodian shall (i) act exclusively as Collateral Custodian for Custodian. At the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit reasonable request of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Collateral Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Initial Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent Days) deliver to the relevant actionCollateral Agent copies of all Asset Files that have not been segregated.
(viiiD) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeperforming its duties, the Collateral Custodian may conclusively assume shall use the same degree of care and attention as it employs with respect to similar collateral that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceholds as collateral custodian.
Appears in 2 contracts
Samples: Pledge Agreement (Capitalsource Inc), Pledge Agreement (Capitalsource Inc)
Duties. The Collateral Custodian Manager shall performtake or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral from time to time, all in accordance with Applicable Law and the Collateral Management Standard. Without limiting the foregoing, the duties of the Collateral Manager shall include the following:
(i) supervising the Collateral, including communicating with Obligors, negotiating and executing on behalf of the Borrower amendments, restatements, supplements and other modifications (including, without limitation, in respect of restructuring agreements, prepackaged plans and other documents related to restructuring arrangements), negotiating and providing on behalf of the Borrower consents and waivers, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) preparing and submitting claims to, and acting as post-billing liaison with, Obligors on each Loan (for which no administrative or similar agent exists);
(iii) maintaining all necessary servicing records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent and the Collateral Custodian) in respect of the servicing of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent or each Lender may reasonably request;
(iv) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral;
(v) promptly delivering to the Administrative Agent, each Lender, the Collateral Agent or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender, the Collateral Agent or the Collateral Custodian may from time to time reasonably request;
(vi) identifying each Loan clearly and unambiguously in its servicing records to reflect that such Loan is owned by the Borrower and that the Borrower is pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vii) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(viii) using its commercially reasonable efforts to maintain the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral;
(iix) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each Collateral Obligation File make payments pursuant to the Collection Account terms of the Collateral Management Report in accordance with Section 2.7, Section 2.8 and Section 2.9;
(x) directing the terms hereof. Promptly upon the receipt of any such delivery sale or substitution of Collateral Obligation Files in Section 2.16 and without any review, Section 2.17;
(xi) providing assistance to the Borrower with respect to the purchase and sale of and payment for the Loans;
(xii) instructing the Obligors and the administrative agents on the Loans to make payments directly into the Collection Account; and
(xiii) complying with such other duties and responsibilities as may be required of the Collateral Custodian shall send notice Manager by this Agreement. It is acknowledged and agreed for purposes of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File this Article VI that in circumstances in which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any a Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order Manager acts as lead agent with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this AgreementLoan, the party receiving such service Collateral Manager shall promptly deliver or cause to be delivered to the other parties to this Agreement (perform its servicing duties hereunder only to the extent not prohibited by Applicable Law) copies of all court papersthat, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by lender under the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderrelated loan syndication Underlying Instruments, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencedo so.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Franklin BSP Lending Corp), Loan and Servicing Agreement (Business Development Corp of America)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestObligation. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case a Responsible Officer of the Borrower Borrower, the Servicer or the Collateral ManagerFacility Agent, or a Responsible Officer, in the case of the Agentas applicable, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Samples: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Duties. The Investment Advisor shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Custodian from time to time, all in accordance in all material respects with Applicable Law and the Advisor Standard. Subject to the terms of this Agreement (including Section 11.04 and Article VI), the Investment Advisor has the sole and exclusive authority to make any and all decisions with respect to the Collateral and take or refrain from taking any and all actions with respect to the Collateral. Without limiting the foregoing, the duties of the Investment Advisor shall performinclude the following:
(i) supervising the Collateral, including communicating with Obligors, executing amendments, providing consents and waivers, exercising voting rights, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) maintaining all necessary records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent and the Custodian) in respect of the management of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent or any Lender may reasonably request and which can be obtained without any undue burden or expense;
(iii) maintaining and implementing administrative and operating procedures (including an ability to recreate records evidencing the Collateral in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral;
(iv) promptly delivering to the Administrative Agent, each Lender, the Collateral Agent or the Custodian, from time to time, such information and records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender, the Custodian or the Collateral Agent may from time to time reasonably request and which can be obtained without any undue burden or expense;
(v) identifying each Collateral Asset in its internal records to reflect the ownership of such Collateral Asset by the Borrower;
(vi) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be asserted by an Obligor with respect to any Collateral Asset (or portion thereof) of which it has actual knowledge or has received notice;
(vii) maintaining the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral;
(iviii) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each Collateral Obligation File make payments pursuant to the Collection Account in accordance with terms of the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.Payment Date Report;
(iiix) With respect to each Collateral Obligation File which has been or will be delivered to assisting the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance Borrower with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, purchase and sale of and payment for the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use Assets and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.Eligible Investments;
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)
Duties. The From the Closing Date until its removal or replacement pursuant to Section 11.05 or Section 11.07, as applicable, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents (the “Review Period”), the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents does not match the balance set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Administrative Agent and the Servicer of such determination and deliver to the Administrative Agent and the Servicer a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral ManagerCustodian’s delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at 0000 Xxxx Xxx, Florence, South Carolina, 29501, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default Borrower or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager Servicer hereunder or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of under any such occurrenceother Transaction Document.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral CustodianCustodian shall take and retain custody of the Portfolio Asset Files and the Required Portfolio Documents delivered by the Portfolio Asset Servicer and Borrower pursuant to Section 3.02(c) or 3.04(d), as all for the duly appointed agent benefit of the Administrative Agent on behalf of the Secured Parties, for these purposes, acknowledges that . Within five Business Days of receipt of any Required Portfolio Documents (if the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but Custodian receives no more than three (310 Portfolio Asset Files during such five Business Day period) Business Days after such Funding Date, except or within a reasonable timeframe as set forth in Section 10.20)mutually agreed upon, the Collateral Obligation Files delivered Custodian shall review such Required Portfolio Documents to it for each Collateral Obligation confirm that (A) the principal amount and the Obligor name on the applicable Loan Agreement and any related promissory note matches that on the Portfolio Asset Schedule and the Portfolio Asset number on the applicable Loan Agreement matches that on the Portfolio Asset Schedule, as applicable, (B) such Required Portfolio Documents, have been executed (either an original or a copy, as indicated on the related Portfolio Asset Checklist), appear to relate to such Portfolio Asset and have no mutilated pages, (C) filed copies of the UCC financing statements and other filings identified on the related Portfolio Asset Checklist are included and (D) if listed on the Schedule related Portfolio Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral Obligations attached for such Portfolio Asset is included (the items to be reviewed pursuant to this sentence, collectively, the related Asset Approval Request“Review Criteria”). The In order to facilitate the foregoing review by the Collateral Custodian acknowledges that Custodian, in connection with any each delivery of a Portfolio Asset Approval RequestFile hereunder to the Collateral Custodian, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered the Portfolio Asset Servicer shall provide to the Collateral Custodian from time a hard copy (which may be proceeded by an electronic copy and separately uploaded by the Borrower or the Portfolio Asset Servicer or its designee to timethe designated XXXXxxx.xxx; provided that each .pdf document will be identified with the loan number in the format “LoanNumber.DocumentName.pdf” (example, 12345.mortgage.pdf)) of the related Portfolio Asset Checklist which contains the Portfolio Asset information with respect to the Portfolio Asset File being delivered, identification number and that the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian will provide Custodian’s obligation to review the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation Portfolio Asset File shall be limited to the Collection Account in accordance with Review Criteria and based on the terms hereofinformation provided on the related Portfolio Asset Checklist. Promptly upon If, at the receipt conclusion of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice determine that (1) the principal balance of the Portfolio Asset with respect to which it has received the Portfolio Asset File does not match the principal balance set forth on the Portfolio Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, Initial Lender and the Facility Servicer of such receipt discrepancy within one Business Day or (2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Borrower, Administrative Agent, Initial Lender and the Facility Servicer of such determination and provide the Borrower and Facility Servicer with a list of the non-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy. The Borrower shall have ten Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing by the Borrower or Portfolio Asset Servicer in accordance with Section 9.08 and approved by the Administrative Agent (acting at the direction of the Majority Lenders) within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Portfolio Asset File which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Portfolio Asset File.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Portfolio Asset Files, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Portfolio Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation All Portfolio Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained continuously stored in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified as the address of the Collateral Custodian specified in Annex A on Schedule IV or at such other offices office as shall be specified to the Agent Administrative Agent, Facility Servicer and the Borrower by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep segregate the Collateral Obligation Portfolio Asset Files clearly segregated from any other documents or instruments in on its filesinventory system.
(iv) With respect On each Reporting Date following the first delivery of Required Portfolio Documents to the documents comprising each Collateral Obligation FileCustodian, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions Borrower and the Lenders (in a form mutually agreeable to the Administrative Agent (at the direction of the Majority Lenders) and the Collateral Custodian) identifying each Portfolio Asset for which it holds a Portfolio Asset File and the applicable Review Criteria that any Portfolio Asset File fails to satisfy. The Borrower shall controlhave ten Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower have no duties or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered obligations other than those specifically set forth herein or as may subsequently be agreed to in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed writing by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowerparties hereto.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (ACRES Commercial Realty Corp.), Loan and Servicing Agreement (Exantas Capital Corp.)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall performand the Backup Servicer) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, on behalf the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent, the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iix) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)any Required Loan Documents, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a fireproof safe or fireproof file cabinet;
(specified on an accompanying Schedule of Collateral Obligations supplementx) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04;
(xi) directing the sale or substitution of Collateral Obligation File Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xiv) delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, and Updated Assigned Value in accordance with the terms hereof. Promptly upon hereof (including paying the receipt compensation of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.Nationally Recognized Valuation Firms); and
(iixvi) With respect to each Collateral Obligation File which has been or will complying with such other duties and responsibilities as may be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian required of the Secured Parties, Servicer by this Agreement. It is acknowledged and has no instructions to hold any Collateral Obligation File for the benefit of any agreed that in circumstances in which a Person other than the Secured Parties Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and undertakes to perform agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such duties and only such duties as are specifically set forth performance would conflict with or result in this Agreement. In so taking and retaining custody a breach of any of the Collateral Obligation Filesexpress terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance (b) have determined that there is no other commercially reasonable performance that it could render consistent with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession express terms of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody Loan Agreements which would result in all or a portion of all Collateral Obligation Files in its possession in secure facilities the servicing duties being performed in accordance with customary standards for this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such custody and shall reflect in its records the interest non-performance including performing as much of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at servicing duties as possible and performing such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents commercially reasonable or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance similar duties consistent with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlLoan Agreements.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (SLR Investment Corp.)
Duties. The From the Original Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Sections 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementand 3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A on the signature pages attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to BDCA and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (xA) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (yB) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at 400 Xxxxxxxx Xxx., Xxxxxxxxxxx, XX 00000, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Originator and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall accept only written instructions of an Executive Officernot have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, in and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the case other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the Borrower or foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Manager, Custodian shall not be required to exercise any discretion hereunder and shall have no investment or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesmanagement responsibility.
(vi) In the event that (i) the BorrowerIf, the Agent, any Agent, the Collateral Managerin performing its duties under this Agreement, the Collateral Custodian or is required to decide between alternative courses of action, the Collateral Custodian may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Custodian may, but shall be served by a third party with under no duty to, take or refrain from taking any type such courses of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedingsaction. The Collateral Custodian shall, shall act in accordance with instructions received after such two (2) Business Day period except to the extent permitted by lawit has already, continue in good faith, taken or committed itself to hold take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and maintain all independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Obligation Files Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(viiii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Duties. The From the Closing Date until its resignation or removal pursuant to Section 13.10, the Collateral Custodian shall perform, on behalf of the Secured Parties, perform the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior Required Loan Documents delivered by any Loan Party pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents and without any reviewthe related Loan Checklist, the Collateral Custodian shall send notice of review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such receipt Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral ManagerCustodian and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the loan balance listed on the related Loan Schedule (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Custodian as applicable) of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian is acting exclusively as unable to confirm the custodian Review Criteria, the Collateral Custodian shall within one (1) Business Day notify the Servicer and the applicable Loan Party of such determination and provide the Servicer and such Loan Party with a list of the Secured Partiesnon-complying Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Custodian shall promptly notify the Servicer, the applicable Loan Party and has no instructions the Administrative Agent of such continued non-compliance and such Loan shall cease to hold be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit D by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return the Required Loan Documents for any Collateral Obligation File for the benefit of Loan which fails to satisfy any Person other Review Criteria to such Loan Party. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In so taking and retaining custody of the Collateral Obligation FilesUnderlying Instruments, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Underlying Instruments or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents that are originals shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office offices of the Collateral Custodian specified in Annex A or at such other offices as Custodian. All Required Loan Documents shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesCustodian.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the AgentAdministrative Agent and the Collateral Custodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Servicer shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, the Agent’s written instructions such Loan shall controlcease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the case Administrative Agent deems necessary or desirable in order to exercise or enforce any of the Borrower or rights of a Secured Party hereunder. In the event the Collateral Manager, Custodian receives instructions from the Servicer or a Responsible Officer, in any Loan Party which conflict with any instructions received by the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation FilesCustodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) In On or promptly following the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtClosing Date, the Collateral Custodian shall dispose of such provide the Collateral Obligation File or a document included within such Collateral Obligation File as directed Agent, the Administrative Agent, the Borrower and the Servicer access to an electronic database maintained by the Agent in writingCollateral Custodian, which such database shall give a direction consistent with such determination. Expenses of identify the Required Loan Documents delivered to the Collateral Custodian incurred per the Loan Checklist.
(vii) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have or be deemed to have any fiduciary relationship with any party hereto or any Secured Party in its capacity as a result of such proceedings such, and no implied covenants, functions, obligations or responsibilities shall be borne read into this Agreement, the other Loan Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be deemed to assume any obligations or liabilities of the Borrower, the Administrative Agent or Collateral Agent hereunder or under any other Loan Document.
(viii) After the occurrence and during the continuance of an Event of Default, the Collateral Custodian agrees to cooperate with the Collateral Agent and promptly deliver any Required Loan Documents to the Collateral Agent (acting at the direction of the Required Lenders) as requested in order to take any action that the Lenders deem necessary or desirable in order for the Collateral Agent to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder. In the event the Collateral Custodian receives instructions from the Borrower which conflict with any instructions received from the Collateral Agent (acting at the direction of the Required Lenders) at any time other than following the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall rely on and follow the instructions given by the Collateral Agent. After the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall rely on and follow only the instructions given by the Collateral Agent and shall not follow any instructions given by the Borrower.
(viiix) The Collateral Agent or the Administrative Agent (each acting at the direction of the Required Lenders) may direct the Collateral Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Collateral Agent or Administrative Agent, as applicable; provided that the Collateral Custodian shall not be required to take any such action hereunder at the request direction of the Administrative Agent, any Secured Parties the Collateral Agent, or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received been provided with an indemnity agreement (including the indemnity provisions contained herein and in the other Transaction Documents) which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent or Collateral Agent, as applicable, and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent or the Collateral Agent, as applicable, within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent or the Collateral Agent, as applicable, shall be deemed to have declined to consent to the relevant action.
(viiix) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, Custodian or the Administrative Agent or Collateral Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless an authorized officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager a Lender or the Borrower referring to this Agreement, describing such event Event of Default, and stating that such notice is a “Notice of Event of Default,.” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Loan and Security Agreement (Blue Owl Credit Income Corp.), Loan and Security Agreement (Owl Rock Core Income Corp.)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Asset Documents delivered by the Collateral Manager shall deliver, on or prior Seller pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and without any the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such receipt discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Collateral ManagerSeller. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent and the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Asset Documents or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Asset Document shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian All Required Asset Documents shall keep the Collateral Obligation Files be clearly segregated from any other documents or instruments in its filesmaintained by the Collateral Custodian.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in non-complying Assets and the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesapplicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the similar Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the it holds as Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. The On or before the Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Required Receivable Files delivered by the Borrowers pursuant to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Section 3.1 in accordance with the terms hereofand conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Promptly upon the Within (i) two (2) Business Days of its receipt of any Required Receivable File with respect to Receivables being acquired from Sellers of Receivables included in the Collateral on a prior Funding Date and (ii) five (5) Business Days of its receipt of any Required Receivable File with respect to Receivables being acquired from Sellers of Receivables not previously included in the Collateral, the Collateral Custodian shall review such Required Receivable File to confirm that (A) the loan documents and instruments in such Required Receivable File have been properly executed and have no missing or mutilated pages, and (B) the related original principal balance of the Receivable (for closed end contracts only), contract or other identifying number and Obligor name with respect to such Receivable is referenced on the related Receivables List and is not a duplicate Receivable (based on the contract number or other identifying number) (such items (A) and (B) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with the delivery of Required Receivable Files hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in Excel® or a comparable format) that contains the contract number, Obligor name and without any original loan balance (if applicable). At the conclusion of such review, the Collateral Custodian shall send notice deliver to the Servicer, the Borrowers and the Administrative Agent a collateral receipt in the form of Exhibit K attached hereto (a “Collateral Receipt”). If any Collateral Receipt discloses any deficiencies (a “Deficiency”) in any of the Required Receivable Files, the Collateral Custodian shall promptly notify the Administrative Agent and the Servicer of such receipt Deficiency and provide them with an exception report specifying the Receivables which have a Deficiency and the Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by a Receivable with any Review Criteria, the Collateral Custodian shall promptly notify the Borrowers and the Administrative Agent of such determination by providing an updated exception report to such Persons identifying, with particularity, each Receivable and each of the applicable Review Criteria that such Receivable fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Receivable which fails to satisfy a Review Criteria to the Collateral ManagerBorrowers or their applicable designee. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing, inspecting or examining any Required Receivable File to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Required Receivable Files, the Collateral Custodian shall be deemed to be acting for as the purpose Bailee of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with enforceability of any Required Receivable File documents or the provisions existence, perfection or priority of Section 18.5any Lien on the Required Receivable Files or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Receivable File documents that are originals or copies shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure fire resistant facilities in accordance with the Collateral Custodian’s customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets custody, at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation All Required Receivable File documents that are originals or copies shall be marked with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesaccess.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Servicing Report in accordance with Section 2.7 and 2.8, as applicable, (the “Payment Duties”).
(v) On the third Business Day of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form acceptable to the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or Administrative Agent and the Collateral Manager, or a Responsible Officer, Custodian) an updated list of Receivables in the case of the Agent, concerning the use, handling its possession and disposition of the Collateral Obligation Filesan updated exceptions report.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided similar collateral that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionholds as collateral custodian for others.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CLST Holdings, Inc.), Revolving Credit Agreement (CLST Holdings, Inc.)
Duties. The From the Closing Date until Restatement Date, the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made as listed on the Loan Asset Checklist, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Manager, Custodian shall notify the Agent and each Lender Agentthe Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, that the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall provide a written report to the Agent (iwho will provide each Lender with a copy promptly upon receipt thereof) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of Servicer (in a form mutually agreeable to the Agent, Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Obligation File Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a document included within such Collateral Obligation File written request in the form of Exhibit N), as directed applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Agent in writingBorrower hereunder, which shall give a direction consistent or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with such determinationrespect to Article VII. Expenses of In the event the Collateral Custodian incurred as a result of such proceedings shall be borne receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the BorrowerAgent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(viiii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Samples: Omnibus Amendment (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Sections 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementand 3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents and without any reviewthe related Loan Asset Checklist, the Collateral Custodian shall send notice of review the Required Loan Documents to confirm that (A) the Obligor name matches the Loan Asset Checklist, (B) such receipt Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist has been provided to the Collateral ManagerCustodian (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the loan balance listed on the related Loan Tape (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian is acting exclusively as the custodian unable to confirm clauses (A) or (D) of the Secured PartiesReview Criteria, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any other Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer and the Administrative Agent of such determination and provide the Servicer and the Administrative Agent with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period and the Administrative Agent has provided the Servicer with written confirmation of such non-compliance, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no instructions to hold any Collateral Obligation File for longer be included in the benefit calculation of any Person other Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A Section 5.06(c) or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Administrative Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), commencing in July 2016, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (iin a form mutually agreeable to the Administrative Agent and the Collateral Custodian) act exclusively as Collateral Custodian identifying each Loan Asset for which it holds Required Loan Documents and the Secured Parties, (ii) hold all documents constituting applicable Review Criteria that any Loan Asset fails to satisfy. The Servicer shall have 20 Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such Collateral Obligation File received by it for non-compliance has not been cured within such time period and the exclusive use and benefit of Administrative Agent has provided the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or Servicer with written instructions furnished by the Agent; providedconfirmation of such non-compliance, that such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the event calculation of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlany Borrowing Base hereunder until such deficiency is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received actual knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager Custodian. Notice or knowledge of any matter by Xxxxx Fargo in its capacity as Administrative Agent or Lender and other publically available information shall not constitute notice or knowledge of the Borrower referring to this Agreement, describing such event Collateral Custodian.
(iv) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume reasonably request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that there is no Event will help the Collateral Custodian to identify and verify the Borrower’s identity (and in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of Defaultgood standing, Unmatured Event of Defaultlicense to do business, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceother pertinent identifying information.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Solar Capital Ltd.), Consent and Omnibus Amendment (Solar Capital Ltd.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Borrower, each Agent and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian Custodian, any Agent or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the AgentFacility Agent in the absence of its own bad faith, fraud, gross negligence, willful misconduct or reckless disregard. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 7.5 or resignation pursuant to Section 7.7, the Collateral Custodian Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Agent shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the loan balance listed on the related Loan Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Agent, the Collateral Manager shall provide to the Collateral Agent a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable) of the related Loan Checklist that contains a list of all related Required Loan Documents and without any whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian Agent is unable to confirm the Review Criteria, the Collateral Agent shall send notice within one (1) Business Day notify the Collateral Manager and the Borrower of such receipt determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and each Lender such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit D by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesUnderlying Instruments, the Collateral Custodian Agent shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties as agent shall be released from the possession of the Collateral Custodianlimited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Loan Documents that are originals shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records fire resistant vaults, rooms or cabinets at the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession offices of the Collateral Agent (other than documents delivered electronically) set forth in Section 5.5(c). All Required Loan Documents shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian Agent shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesAgent.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian Agent shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, the Agent’s written instructions such Loan shall controlcease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the case Administrative Agent deems necessary or desirable in order to exercise or enforce any of the Borrower rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Collateral Manager, or a Responsible Officer, in Borrower which conflict with any instructions received by the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation FilesAgent shall rely on and follow the instructions given by the Administrative Agent.
(vi) In The Collateral Agent shall, promptly upon its actual receipt of a Borrowing Base Certificate from the event that (i) Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Borrowing Base Certificate, any deliver such calculation to each of the Administrative Agent, the Borrower and Collateral Manager, the Collateral Custodian or Manager within one (1) Business Day of receipt by the Collateral Agent of such Borrowing Base Certificate. The Collateral Agent shall also make required calculations for each Payment Date Statement as of the day that is four (4) Business Days prior to the applicable Payment Date, and deliver such calculations to the Borrower and the Collateral Manager (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Collateral Manager) for the Collateral Manager’s (or Administrative Agent’s, as applicable) review and approval no later than two (2) Business Days prior to such Payment Date. Upon the approval (which may be served by email) by the Collateral Manager (or after delivery of a third party with any type Notice of levyExclusive Control, attachmentthe Administrative Agent), writ the Payment Date Statement shall constitute instructions by the Collateral Manager (or court order with respect after delivery of a Notice of Exclusive Control, the Administrative Agent) to any the Collateral Obligation File Agent to withdraw on the related Payment Date from the applicable Collection Account and pay or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than transfer amounts set forth in such report in the manner specified, and in accordance with the provisions of this Agreementpriorities established, the party receiving such service shall promptly deliver in Section 2.7 or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papersSection 2.8, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowerapplicable.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement.
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) All calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Adjusted Borrowing Value, Assigned Value and Unrestricted Cash of any Obligor shall be made exclusively using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Custodian in writing Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian Agent hereunder, the Collateral Custodian Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that . Each of the Administrative Agent, the Borrower and the Collateral Custodian Manager shall not timely provide to the Collateral Agent the information required to be delivered by it under this Agreement and any other Transaction Document, and such other information as may be requested by the Collateral Agent in connection with its verification and reporting duties hereunder. Each of the Administrative Agent, the Borrower and the Collateral Manager shall assist and cooperate with the Collateral Agent in connection with the preparation or verification by the Collateral Agent of all reports, statements, calculations and certificates required in connection with the Collateral Agent’s duties hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise the Collateral Agent in a timely manner of the results of any determinations, designations and selections made by it relating to the acquisition or disposition of any Collateral and supply the Collateral Agent with such other information as the Collateral Agent may from time to time request with respect to the Collateral to permit the Collateral Agent to perform its obligations hereunder, including any information that may be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of under this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory any other Transaction Document with respect thereto). In to or as to the event the Collateral Custodian requests the consent designation or characterization of the Agent any Loans and the monitoring of any acquisition or disposition of any Loans and whether a credit amendment has occurred. The Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed have no obligation to have declined to consent to determine whether any Loan Asset meets the relevant actiondefinition of “Eligible Loan”.
(viiixvi) The Nothing herein shall prevent the Collateral Custodian shall not be liable for Agent or any action taken, suffered of its Affiliates from engaging in other businesses or omitted by it in accordance with the request or direction from rendering services of any Secured Party, kind to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeany Person.
(xvii) Concurrently herewith, the Administrative Agent directs UMB Bank, National Association as Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceAgent to enter into the Securities Account Control Agreement.
Appears in 2 contracts
Samples: Loan and Security Agreement (Stepstone Private Credit Fund LLC), Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Borrower shall cause the Servicer to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian Agent will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents Delivered (as defined in the Pledge and Security Agreement) in physical form at one of its offices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and from time to time upon notice to the Borrower, the Investment Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) five Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Investment Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such receipt documents shall have been delivered by the Borrower to or otherwise made available to the Collateral Manager, the Agent and each Lender Administrative Agent).
(ii2) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as Custodial Office and shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Affiliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence Borrower or Investment Manager hereunder or under any other Transaction Document.
(5) The Collateral Custodian shall have no obligation to review or verify whether the Borrower or the Investment Manager on its behalf has obtained and delivered (or made available to the Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of an Event of DefaultCollateral Obligations hereunder, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless and the Collateral Custodian has received written notice from shall have no obligation to maintain the Agent, Collateral Manager or Transaction Data Room on behalf of the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceBorrower.
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Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that shall take and retain custody of the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Asset Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestAsset. The Collateral Custodian acknowledges that in connection with any Asset Approval RequestReinvestment, additional Collateral Obligation Asset Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation Asset File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation Asset File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Asset Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Administrative Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5as provided herein, no Collateral Obligation Asset File or other document constituting a part of a Collateral Obligation Asset File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation Asset File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation Asset File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Asset Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case a Responsible Officer of the Borrower Collateral Manager or the Collateral Manager, or a Responsible Officer, in the case of the Agent, Administrative Agent concerning the use, handling and disposition of the Collateral Obligation Asset Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Manager, Manager or the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by lawLaw, continue to hold and maintain all the Collateral Obligation Asset Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation Asset File or a document included within such Collateral Obligation Asset File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
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Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.22), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerInvestment Manager and, the Administrative Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Administrative Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
. Custodian and, the Administrative Agent and each Agent (vii) The Agent may direct such information contained on the Schedule of Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated Obligations shall also be delivered to the Collateral Custodian hereunderand, the Collateral Custodian shall not be required Administrative Agent and each Agent simultaneously in Microsoft Excel format) with respect to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not Obligations to be required delivered to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of on such request, then the Agent shall be deemed to have declined to consent to the relevant actionFunding Date.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS Investment Corp III)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Borrower shall cause the Servicer to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.2310.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian Agent will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, USActive 57084911.14 -140- in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. i. In so taking and retaining custody of the Collateral Obligation FilesUnderlying Instruments with respect to the Permitted Investments, the Collateral Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
ii. All Required Loan Documents with respect to Permitted Investments that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the Custody Facilities (or such other location identified to the Administrative Agent and Borrower). All such Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All such Required Loan Documents that are originals or copies shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian. All such Required Loan Documents that are delivered to the Collateral Custodian in electronic format shall be saved onto disks and/or onto the Collateral Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
iii. The Collateral Custodian shall make payments in accordance with Section 2.7 and Section 2.8 (the “Payment Duties”).
iv. The Collateral Custodian shall provide a written daily report to the Administrative Agent and the Collateral Manager of (x) all deposits to and withdrawals from the Accounts for each Business Day and the outstanding balances as of the end of each Business Day, and (y) a report of settled trades for each Business Day. For the avoidance of doubt the Collateral Custodian will not permit any withdrawal from any Collection Account except in accordance with Section 2.9(f).
v. On or before the Effective Date, the Collateral Custodian shall accept from the Collateral Manager delivery of the information required to be set forth in the Borrowing Base Certificate in hard copy and on computer tape; provided that the computer tape is in an MS DOS, PC readable ASCII format or other format to be agreed upon by the Collateral Custodian and the Collateral Manager on or prior to closing.
vi. Not later than 12:00 noon (New York City Time) on each Reporting Date, the Collateral Manager shall deliver to the Collateral Custodian the loan tape, which shall include but not be limited to the following information: (x) for each Loan, the name and number of the related Obligor, the collection status, the loan status, a detailed aging of such Loan, an indication of whether or not such Loan is an Eligible Loan, the date of each Scheduled Payment and the Outstanding Balance, (y) the Borrowing Base and (z) the Adjusted Borrowing Value of each Loan and such other information, including any information related to an Approved Foreign Currency, as may be reasonably required for the purpose Collateral Custodian to perform its duties hereunder (such loan tape, the “Tape”). The Collateral Custodian shall accept delivery of perfecting the Tape.
vii. Prior to the related Payment Date, the Collateral Custodian shall review the Payment Date Report to ensure that it is complete on its face and, based solely on the information provided in the Tape, that the following items in such Payment Date Report have been accurately calculated, if applicable, and reported: (A) the Borrowing Base, (B) the Collateral Custodian Fee, (C) the Adjusted Borrowing Value of each Loan and (D) Availability. The Collateral Custodian by a separate written report shall notify the Administrative Agent and the Collateral Manager of any disagreements with the Payment Date Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
viii. In performing its duties, all calculations made by the Collateral Custodian pursuant to this Section 7.2(b) using Advance Rate, EBITDA and Unrestricted Cash of any Obligor (or, with respect to Advance Rate, Loan) shall be made using such amounts and an Approved Foreign Currency as provided by the Borrower or the Collateral Manager to the Collateral Custodian on the Tape.
ix. The Collateral Custodian shall take and retain custody of the Required Loan Documents delivered (physically or electronically) by the Borrower pursuant to the definition of “Eligible Loan” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent’s security interest therein under , as agent for the UCCSecured Parties. Except upon Within five (5) Business Days of its receipt of any Required Loan Documents and the Loan Checklist (the “Review Period”), the Collateral Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the files delivered per the following sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) based on a review of the applicable note, the related initial Loan balance when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Checklist and is not a duplicate Loan (such items (A) through (B) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Custodian, the Collateral Manager shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format acceptable to the Collateral Custodian) listing Loan identification number, name of Obligor, and initial Loan balance and the related Loan Checklist per file that contains a list of all Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. If, at the conclusion of such review, the Collateral Custodian shall determine that any Review Criteria are not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Borrower, the Administrative Agent and the Collateral Manager of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have ten (10) Business Days to correct any non-compliance with any Review Criteria as stated in the provisions preceding sentence. After the Review Period, the Collateral Custodian shall execute and deliver to the Collateral Manager and the Administrative Agent a certification substantially in the form attached hereto as Exhibit J, including an attached exception report. In addition, if requested in writing in the form of Section 18.5, no Exhibit E by the Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from Manager and approved by the possession Administrative Agent within ten (10) Business Days of the Collateral Custodian.
(iii) The ’s delivery of such report, the Collateral Custodian shall maintain continuous return the Required Loan Documents for any Loan which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Underlying Instruments. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist.
x. In taking and retaining custody of all the Required Loan Documents, the Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and Custodian shall reflect in its records be deemed to be acting as the interest agent of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of Parties; provided that the Collateral Agent (other than documents delivered electronically) Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Custodian’s duties as agent shall be maintained limited to those expressly contemplated herein.
xi. All Required Loan Documents (to the extent physically received by the Collateral Custodian) that are (i) originals or physical copies shall be kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at the Custody Facilities, or at such other offices office as shall be specified to the Agent Administrative Agent, the Borrower, and the Collateral Manager by the Collateral Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File change and (ii) in electronic form (it being agreed that Required Loan Documents shall only be permitted to be delivered in electronic form with respect to Noteless Loans) shall be marked held electronically in such electronic format in which such Required Loan Documents were received. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the physical Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesCustodian.
(iv) With respect to the documents comprising xii. On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Borrower, and the Collateral Manager (in a form acceptable to the Administrative Agent’s written instructions shall control) identifying each Loan for which it holds Required Loan Documents, the non-complying Loans and the applicable Review Criteria that any non-complying Loan fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, xiii. Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be deemed to assume any obligations or liabilities of such proceedings shall be borne by the BorrowerBorrower or Collateral Manager hereunder or under any other Transaction Document.
(vii) xiv. The Administrative Agent may direct the Collateral Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that that, the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties Administrative Agent or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) xv. The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable.
xvi. In the absence of receipt of such noticeperforming its duties, the Collateral Custodian may conclusively assume that there is no Event shall use a commercially reasonable degree of Default, Unmatured Event care and attention required or expected with respect to the provision of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencesimilar services and similar loans.
Appears in 1 contract
Samples: Loan, Security and Collateral Management Agreement (AG Twin Brook Capital Income Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files in electronic form delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all tangible Collateral Obligation Files in its possession possession, if any, in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at c/o DB Services Americas, Inc., 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; providedprovided that, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable non-appealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 4, Inc.)
Duties. The From the Closing Date until its resignation or removal pursuant to Section 14.9, the Collateral Custodian shall perform, on behalf of the Secured Parties, perform the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall accept delivery and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation Related Contracts listed on the Schedule of Collateral Obligations attached related Document Checklist delivered by the Borrower pursuant to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files clause (specified on an accompanying Schedule of Collateral Obligations supplementb) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account above in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon All Related Contracts in the receipt physical possession of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice be kept in fire resistant vaults, rooms or cabinets at the Collateral Custodian Office. All Related Contracts in the physical possession of the Collateral Custodian shall be placed together with an appropriate identifying label and maintained in such receipt a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Related Contracts on its inventory system and will not commingle the physical Related Contracts with any other files of the Collateral Custodian other than those, if any, relating to the Collateral Manager, the Agent Borrower and each Lender Agentits subsidiaries.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRelated Contracts, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that, the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on the Collateral Loans or Related Contracts or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Related Contracts; provided further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The [Reserved.]
(iv) Notwithstanding any provision to the contrary elsewhere in the Loan Documents, the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files not have or be deemed to have any fiduciary relationship with any party hereto or any Secured Party in its possession in secure facilities in accordance with customary standards for such custody capacity as such, and no implied covenants, functions, obligations or responsibilities shall reflect in its records be read into this Agreement, the interest other Loan Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the Secured Parties therein. Each Collateral Obligation File which comes into foregoing, it is hereby expressly agreed and stipulated by the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of parties hereto that the Collateral Custodian specified in Annex A shall not be required to exercise any discretion hereunder and shall have no investment or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agentmanagement responsibility. The Collateral Custodian shall keep not be deemed to assume any obligations or liabilities of the Borrower, the Administrative Agent or Collateral Obligation Files clearly segregated from Manager hereunder or under any other documents or instruments in its filesLoan Document.
(ivv) With respect After the occurrence and during the continuance of an Event of Default, the Collateral Custodian agrees to cooperate with the Collateral Agent (acting at the direction of the Controlling Parties) and promptly deliver any Related Contracts to the documents comprising each Collateral Obligation FileAgent as requested in order to take any action that the Controlling Parties deem necessary or desirable in order for the Collateral Agent to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder. In the event the Collateral Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received from the Collateral Agent (acting at the direction of the Controlling Parties) at any time other than following the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for rely on and follow the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished given by the Collateral Agent; provided, that in . After the event occurrence and during the continuance of a conflict between the terms an Event of this Agreement and the written instructions of the AgentDefault, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept rely on and follow only written the instructions of an Executive Officer, in given by the case of Collateral Agent and shall not follow any instructions given by the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the The Collateral Manager, the Collateral Custodian Agent or the Collateral Administrative Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with each acting at the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(viiControlling Parties) The Agent may direct the Collateral Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Collateral Agent or Administrative Agent, as applicable; provided that the Collateral Custodian shall not be required to take any such action hereunder at the request direction of the Administrative Agent, the Collateral Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received been provided with an indemnity agreement which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent or Collateral Agent, as applicable, and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent or the Collateral Agent, as applicable, within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent or the Collateral Agent, as applicable, shall be deemed to have declined to consent to the relevant action.
(viiivii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, Custodian or the Administrative Agent or Collateral Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless an Administrative Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencethereof.
Appears in 1 contract
Samples: Credit Agreement (Golub Capital Private Credit Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations; provided, however, that any such Collateral Custodian duties with respect to Collateral to be held in an electronic form shall instead be performed by the Collateral Administrator:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents and without any reviewthe related Loan Checklist, the Collateral Custodian shall send notice of review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such receipt Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral ManagerCustodian and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the loan balance listed on the related Loan Schedule (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Collateral Manager shall provide to the Collateral Custodian is acting exclusively as an electronic copy in EXCEL, or a comparable format acceptable to the custodian Collateral Custodian, of the Secured Partiesrelated Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian us unable to confirm the Review Criteria, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has no instructions still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Custodian shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to hold be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return the Required Loan Documents for any Collateral Obligation File for Loan which fails to satisfy any Review Criteria to the benefit of any Person other Borrower. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In so taking and retaining custody of the Collateral Obligation FilesUnderlying Instruments, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Underlying Instruments or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Underlying Instruments that are originals or copies shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A or its offices at such other offices as 0000 00xx Xxx. X.X., Xxxxxxxxxxx, XX, 00000. All Required Loan Documents shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesCustodian.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Collateral Manager (in a form mutually agreeable to the AgentAdministrative Agent and the Collateral Custodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, the Agent’s written instructions such Loan shall controlcease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the case Administrative Agent deems necessary or desirable in order to exercise or enforce any of the Borrower rights of a Secured Party hereunder. In the event the Collateral Custodian receives instructions from the Collateral Manager or the Collateral Manager, or a Responsible Officer, in Borrower which conflict with any instructions received by the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation FilesCustodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all promptly upon its actual receipt of a Borrowing Base Certificate from the Collateral Obligation Files that are Manager on behalf of the subject Borrower, re-calculate the Borrowing Base and, if the Collateral Custodian’s calculation does not correspond with the calculation provided by the Collateral Manager on such Borrowing Base Certificate, deliver such calculation to each of such proceedings pending a finalthe Administrative Agent, nonappealable order Borrower and Collateral Manager within one (1) day of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, receipt by the Collateral Custodian shall dispose of such Borrowing Base Certificate. The Collateral Obligation File Custodian shall also make required calculations for its Payment Duties as of the day that is four (4) Business Days prior to the applicable Payment Date, and deliver such calculations to the Borrower and the Collateral Manager (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Collateral Manager) for the Collateral Manager’s (or a document included within Administrative Agent’s, as applicable) review no later than two (2) Business Days prior to such Collateral Obligation File as directed Payment Date. The approval of such calculations (which may be by email) by the Agent in writingCollateral Manager (or after delivery of a Notice of Exclusive Control, which the Administrative Agent) shall give constitute instructions by the Collateral Manager (or after delivery of a direction consistent with such determination. Expenses Notice of Exclusive Control, the Administrative Agent) to the Collateral Custodian incurred to withdraw on the related Payment Date from the applicable Collection Account and pay or transfer amounts set forth in such report in the manner specified, and in accordance with the priorities established, in Section 2.7 or Section 2.8, as a result of such proceedings shall be borne by the Borrowerapplicable.
(vii) The Collateral Custodian shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Custodian to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Custodian by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Custodian (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Custodian as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Custodian (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Custodian is required to decide between alternative courses of action, the Collateral Custodian may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Custodian does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Custodian may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Custodian shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Custodian shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Custodian by the Borrower as may be reasonably required by the Collateral Custodian.
(xi) The Collateral Custodian shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Custodian shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Custodian or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Custodian shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Custodian shall use a similar degree of care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others and (B) all calculations made by the Collateral Custodian pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Custodian, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, Controlling Lender, Borrower or the Collateral Manager to the Collateral Custodian.
(xv) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Loan and Security Agreement (New Mountain Finance Corp)
Duties. The From the Closing Date until Restatement Date, the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made as listed on the Loan Asset Checklist, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note, assignment agreement or participation interest documentation, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Manager, Custodian shall notify the Agent and each Lender Agentthe Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, that the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall provide a written report to the Agent (iwho will provide each Lender with a copy promptly upon receipt thereof) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of Servicer (in a form mutually agreeable to the Agent, Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Obligation File Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a document included within such Collateral Obligation File written request in the form of Exhibit M), as directed applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Agent in writingBorrower hereunder, which shall give a direction consistent or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with such determinationrespect to Article VII. Expenses of In the event the Collateral Custodian incurred as a result of such proceedings shall be borne receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the BorrowerAgent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(viiii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager or Custodian.
(iv) The parties acknowledge that in accordance with the Borrower referring to this Agreement, describing such event Customer Identification Program (CIP) requirements under the USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that there is no Event will help the Collateral Custodian to identify and verify the Borrower’s identity (in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of Defaultgood standing, Unmatured Event of Defaultlicense to do business, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceother pertinent identifying information.
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Duties. The From the Closing Date until its removal pursuant to Section 13.05 or its resignation pursuant to Section 13.07, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With Loan Asset with respect to each Collateral Obligation File which it has been or will be delivered to the Collateral Custodian, the Collateral Custodian received Required Loan Documents is acting exclusively less than as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of on the Collateral Obligation FilesLoan Asset Schedule, the Collateral Custodian shall be deemed to be acting for notify the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Administrative Agent and the Collateral Manager in a written notice at least thirty Servicer of such discrepancy within one Business Day, or (30ii) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation FileReview Criteria is not satisfied, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for within one Business Day notify the Secured Parties, (ii) hold all documents constituting Servicer of such Collateral Obligation File received by it for determination and provide the exclusive use and benefit Servicer with a list of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement non-complying Loan Assets and the written instructions of the Agent, the Agent’s written instructions applicable Review Criteria that they fail to satisfy. The Servicer shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower have five Business Days after notice or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, knowledge thereof to correct any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party non-compliance with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.Review
Appears in 1 contract
Samples: Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Administrative Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, taken suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.03(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Required Loan Documents, the related Collateral Obligation Files Tape and without any reviewthe Document Checklist, the Collateral Custodian shall send notice review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Document Checklist) and have no mutilated pages (in the case of such receipt electronic copies, “mutilated” shall mean that the pages are illegible) (B) UCC and other filings required under the applicable Underlying Instruments have been provided as listed on the Document Checklist, (C) if listed on the Document Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Collateral ManagerObligation number and Obligor name, as applicable, with respect to such Collateral Obligation is referenced on the related Collateral Obligation Tape (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Collateral Manager shall provide to the Collateral Custodian is acting exclusively as the custodian a copy (which may be an electronic copy) of the Secured Partiesrelated Document Checklist which contains the Collateral Obligation information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Collateral Obligation. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Document Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the original balance of the Collateral Obligation with respect to which it has no instructions received Required Loan Documents is less than as set forth on the Collateral Obligation Tape, the Collateral Custodian shall notify the Administrative Agent and the Collateral Manager of such discrepancy within one (1) Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager of such determination and provide the Collateral Manager with a list of the non‑complying Collateral Obligations and the applicable Review Criteria that they fail to hold satisfy. The Collateral Manager shall have five (5) Business Days after notice or knowledge thereof to correct any non‑compliance with any Review Criteria. In addition, if directed in writing (in the form of Exhibit M, which shall include an incumbency certificate for each authorized signer) by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Collateral Obligation File for which fails to satisfy a Review Criteria to the benefit of any Person other Borrower. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreementforegoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. ‑200‑
(ii) In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All Required Loan Documents required to be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A located at Florence, South Carolina, or at such other offices office as shall be specified to the Administrative Agent and the Collateral Manager by the Collateral Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Administrative Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to the Borrower and its Affiliates and subsidiaries; provided that the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With The Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M, which shall include an incumbency certificate for each authorized signer), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the documents comprising each event the Collateral Obligation FileCustodian receives instructions from the Collateral Agent, the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for rely on and follow the Secured Parties, instructions given by the Administrative Agent.
(ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Administrative Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect is hereby authorized to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With with respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder. With respect to such incidental actions, the Collateral Custodian shall not be required to take make any independent determinations as to the taking of any such incidental action hereunder, but shall be required only to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon ‑201‑ the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Loan and Servicing Agreement (MSD Investment Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that shall take and retain custody of the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Asset Files delivered to it by, or on behalf of, the applicable Loan Party for each Collateral Obligation Asset listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestSchedule. The Collateral Custodian acknowledges that in connection with any Asset Reinvestment Request and the related Approval RequestNotice (if applicable), additional Collateral Obligation Asset Files (specified on an accompanying Schedule of supplement to the Collateral Obligations supplementAsset Schedule) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation Asset File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation Asset File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Asset Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Administrative Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.513.05, no Collateral Obligation Asset File or other document constituting a part of a Collateral Obligation Asset File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation Asset File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant fire‑resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation Asset File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Asset Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, provided that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, Officer concerning the use, handling and disposition of the Collateral Obligation Asset Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Manager, Servicer or the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Asset Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation Asset File or a document included within such Collateral Obligation Asset File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender AgentSchedule.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Duties. The Collateral Document Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Document Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Servicer shall deliver, on or prior to the applicable Funding Date deliver no later than five (but no more than three (35) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request, as applicable. The Collateral Document Custodian acknowledges that in connection with any Asset Approval Request or the related Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian it from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Document Custodian, the Collateral Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Document Custodian.
(iii) The Collateral Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into held by the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Document Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Document Custodian and the Agent. The Collateral Document Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Document Custodian shall (i) act exclusively as Collateral Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Document Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agentthe Servicer, the Collateral Manager, the Collateral Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Document Custodian hereunder, the Collateral Custodian such party shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Document Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, Document Custodian (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Document Custodian requests the consent of the Agent and the Collateral Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Document Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodiansuch party, or the Agent. The Collateral Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default Event of Default unless the Collateral Document Custodian has received written notice from the Agent, Collateral Manager Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Servicer Event of Default,” or “Notice of Collateral Manager Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Duties. The Collateral Custodian shall performEmployee will be responsible for the performance of such duties and activities as traditionally carried out by the Chief Financial Officer of a US listed company, on behalf including: ·responsibility for the management of the Secured Partiesfinance and accounting teams of VNRX and its affiliates (together the “Group”). ·supervising the preparation and filing of quarterly and annual audited accounts and liaising with and supervising the auditors. ·presenting VNRX’s financial results to stakeholders and discussing the company’s prospects to existing and potential investors. ·responsibility for producing Group monthly management accounts. ·taking responsibility for the internal controls and risk management of the Group. ·working closely with the Group CEO to provide leadership and direction. ·capital raising and contract negotiation. ·structuring the Group’s financial arrangements including forward revenue and expense modelling, mergers and acquisitions and liaising with stakeholders such as investors and shareholders. ·such other duties as reasonably requested by the Company, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent VNRX Board of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on Directors or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian Group CEO from time to time. THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewAS AMENDED (THE “SECURITIES ACT”), the Collateral Custodian shall send notice of such receipt to the Collateral ManagerOR ANY STATE SECURITIES LAW, the Agent and each Lender Agent.
AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS WILL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) With respect AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER. AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. HOLDERS MUST RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS INVOLVED. THIS CERTIFIES THAT, for value received XXXXX XXXXXX (the “Holder”), is entitled to each Collateral Obligation File which has been subscribe for and purchase at the Exercise Price (defined below) from VOLITIONRX LIMITED, a Delaware corporation, or will be delivered its successor entity (collectively the “Corporation”) an amount of common stock equal to One Hundred Eighty-Five Thousand (185,000) shares, subject to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, terms and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms conditions of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlWarrant Agreement.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Duties. The Investment Advisor shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Custodian from time to time, all in accordance in all material respects with Applicable Law and the Advisor Standard. Subject to the terms of this Agreement (including Section 11.04 and Article VI), the Investment Advisor has the sole and exclusive authority to make any and all decisions with respect to the Collateral and take or refrain from taking any and all actions with respect to the Collateral. Without limiting the foregoing, the duties of the Investment Advisor shall performinclude the following:
(i) supervising the Collateral, including communicating with Obligors, executing amendments, providing consents and waivers, exercising voting rights, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) maintaining all necessary records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent and the Custodian) in respect of the management of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent or any Lender may reasonably request and which can be obtained without any undue burden or expense;
(iii) maintaining and implementing administrative and operating procedures (including an ability to recreate records evidencing the Collateral in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral;
(iv) promptly delivering to the Administrative Agent, each Lender, the Collateral Agent or the Custodian, from time to time, such information and records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender, the Custodian or the Collateral Agent may from time to time reasonably request and which can be obtained without any undue burden or expense;
(v) identifying each Collateral Asset in its internal records to reflect the ownership of such Collateral Asset by the Borrower;
(vi) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be asserted by an Obligor with respect to any Collateral Asset (or portion thereof) of which it has actual knowledge or has received notice;
(vii) maintaining the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral;
(iviii) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Payment Date Report;
(ix) assisting the Borrower with respect to the purchase and sale of and payment for the Collateral Obligation File Assets and Eligible Investments;
(x) instructing the Obligors and/or the administrative agents, as applicable, on the Collateral Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xi) delivering assignments and promissory notes to the Custodian;
(xii) complying with such other duties and responsibilities as may be required of the Investment Advisor by this Agreement; and
(xiii) assisting in the acquisition and sale of Collateral Assets and other Collateral in accordance with Article X and the terms hereofAdvisor Standard. Promptly upon the receipt of any such delivery of Collateral Obligation Files It is acknowledged and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File agreed that in circumstances in which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any a Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order Investment Advisor acts as lead agent with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this AgreementAsset, the party receiving such service Investment Advisor shall promptly deliver or cause to be delivered to the other parties to this Agreement (perform its advisory duties hereunder only to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to a lender under the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it applicable Related Documents has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencedo so.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall accept delivery and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.04(b) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents (the “Review Period”) and without any reviewthe related Loan Asset Schedule, the Collateral Custodian shall send notice (i) review the face of each Required Loan Document received to determine whether it appears regular on its face and appears to relate to the related Loan Asset, (ii) confirm that such receipt to Required Loan Documents have been executed (either an original or a copy, as indicated by the Collateral Manager), if applicable, and have no mutilated pages, and (iii) confirm that the related original balance, Loan Asset number and Obligor name (based on such note or assignment agreement contained in such Loan Asset File, as applicable) with respect to such Loan Asset is as referenced on the related Loan Asset Schedule (such items (i) through (iii), the “Review Criteria”). Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents to the extent provided by the Borrower. In receiving any Loan Asset Files hereunder, and in maintaining any listing or providing any report or communication with respect to the Loan Asset Files held hereunder, the Collateral Custodian shall be required only to review such Loan Asset Files in accordance with the Review Criteria. After the Review Period, the Collateral Custodian shall execute and deliver to the Borrower, the Collateral Manager and the Collateral Agent and each Lender Agenta certification more fully described below (a “Collateral Custodian Certification”) substantially in the form attached hereto as Exhibit K, including an attached exception report (an “Exception Report”), listing any Required Loan Document not included in the related Loan Asset File (which Exception Report shall include any document that does not satisfy the Review Criteria).
(ii) With respect The Collateral Custodian shall, in each Collateral Custodian Certification, certify and confirm as to each Loan Asset File listed on the Loan Asset Schedule that, except as noted on the Exception Report attached to such Collateral Obligation File which has been or will be delivered to Custodian Certification: (x) all Required Loan Documents are in the Collateral Custodian’s possession (either an original or an electronic copy in accordance with the requirements set forth in the definition of Required Loan Documents) and (y) all documents contained in the Loan Asset File have been reviewed by the Collateral Custodian in accordance with the Review Criteria. For the avoidance of doubt, the Collateral Custodian is acting exclusively as the custodian Custodian’s sole obligation with respect to any documents delivered to it pursuant to Section 6.08(c) shall be limited to retaining custody of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. documents without further review.
(iii) In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that, the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on the Required Loan Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5such Required Loan Documents; provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iiiiv) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records All Required Loan Documents, to the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of extent originals are delivered to the Collateral Agent (other than documents delivered electronically) Custodian, shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at 000 X. Xxxxxxxxxx Street, 9th Floor, Chicago, Illinois, or at such other offices office as shall be specified to the Agent Required Lenders and the Collateral Manager by the Collateral Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the original physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(ivv) With respect to On the documents comprising last calendar day of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or and the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling Manager identifying each Loan Asset for which it holds Required Loan Documents and disposition of the Collateral Obligation Filesincluding an Exception Report.
(vi) In the event that (i) the Borrower, the Agent, Notwithstanding any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered provision to the other parties to this Agreement (to contrary elsewhere in the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be deemed to assume any obligations or liabilities of such proceedings shall be borne by the BorrowerBorrower or Collateral Manager hereunder or under any other Transaction Document.
(viii) After the occurrence and during the continuance of an Event of Default, the Collateral Custodian agrees to cooperate with the Collateral Agent (acting at the direction of the Required Lenders) and deliver any Required Loan Documents to the Collateral Agent (pursuant to a written request in the form of Exhibit G) as requested in order to take any action that the Required Lenders deem necessary or desirable in order for the Collateral Agent to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Collateral Agent, the Administrative Agent or the Required Lenders after the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall rely on and follow the instructions given by the Collateral Agent, the Administrative Agent or the Required Lenders, as applicable.
(ii) The Agent Required Lenders may direct the Collateral Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the AgentRequired Lenders; provided that that, the Collateral Custodian shall not be required to take any action hereunder at the request of the AgentRequired Lenders, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent Required Lenders and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent Required Lenders within ten (10) 10 Business Days of its receipt of such request, then the Agent Required Lenders shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received actual knowledge of such matter or written notice thereof is received by the Collateral Custodian from the Administrative Agent, the Collateral Manager Manager, a Lender or the Borrower Borrower, referring to this Agreement, describing such event Event of Default, and stating that such notice is a “Notice of Event of Default,.” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Omnibus Amendment (Blue Owl Technology Finance Corp. II)
Duties. The Collateral Document Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Document Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager purposes shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request, as applicable. The Collateral Document Custodian acknowledges that in connection with any Asset Approval Request or the related Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian it from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Document Custodian, the Collateral Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Document Custodian.
(iii) The Collateral Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each tangible Collateral Obligation File which comes into held by the possession of the Collateral Agent (other than documents delivered electronically) Document Custodian shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager kept in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File fire resistant value, room or cabinet and shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Document Custodian and the Agent. The Collateral Document Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Document Custodian shall (i) act exclusively as Collateral Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Document Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer (as listed on Exhibit F-1, as such exhibit may be amended from time to time by the Servicer with notice to the Document Custodian, the Agent and each Lender Agent), or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agentthe Servicer, the Collateral Manager, the Collateral Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Document Custodian hereunder, the Collateral Custodian such party shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Document Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, Document Custodian (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Document Custodian requests the consent of the Agent and the Collateral Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Document Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodiansuch party, or the Agent. The Collateral Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default Event of Default unless the Collateral Document Custodian has received written notice from the Agent, Collateral Manager Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Servicer Event of Default,” or “Notice of Collateral Manager Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Antares Strategic Credit Fund)
Duties. The Collateral From the Closing Date until its removal pursuant to Section 7.8, the Document Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The As Document Custodian of any Underlying Instruments for a Collateral Obligation hereunder to the extent such Underlying Instruments are received and held by the Document Custodian (the “Custodial Documents”), the Document Custodian shall accept and retain custody of the Custodial Documents delivered to it by the Borrower (or the Collateral Manager on its behalf). In connection with each delivery of Underlying Instruments and related Loan Checklist for a Collateral Obligation hereunder to the Document Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior provide to the applicable Funding Date Document Custodian a Loan Checklist that contains a list of all Underlying Instruments and an electronic file (but no more than three (3in EXCEL or a comparable format) Business Days after such Funding Date, except as set forth in Section 10.20), that contains the Collateral Obligation Files delivered to it for each identification number, the original principal balance of such Collateral Obligation listed on and the Schedule name of the Obligor with respect to such related Collateral Obligations attached to Obligation and such other information with respect thereto as the related Asset Approval Request. The Collateral Document Custodian acknowledges that reasonably may require in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofits duties hereunder. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral The Document Custodian shall be deemed to be acting for as the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession agent on behalf of the Collateral Agent (other than documents delivered electronically) and the Secured Parties; provided that the Document Custodian makes no representations as to the existence, perfection or priority of any lien on the Loan Assets or the Custodial Documents; and provided further that the Document Custodian’s duties as agent shall be maintained in fire-resistant vaults or cabinets limited to those expressly contemplated herein. All Custodial Documents that are delivered to the Document Custodian shall be delivered to U.S. Bank National Association at the its document custody office of the Collateral Custodian specified in Annex A located at 0000 Xxxx Xxx, Florence, South Carolina 29501, Attention: Xxxxx Xxxxxxx, or at such other offices office as shall be specified to the Agent and Administrative Agent, the Collateral Agent, the Collateral Manager and the Borrower by the Document Custodian in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File All Custodial Documents that are originals or copies shall be marked kept in fire resistant vaults, rooms or cabinets at such offices and placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian All Custodial Documents that are originals or copies shall keep the Collateral Obligation Files be clearly segregated from any other documents or instruments maintained by the Document Custodian. The Document Custodian shall have no obligation to review or monitor any Custodial Documents or the information provided on the Loan Checklist or electronic file provided hereunder but shall only be required to hold the Custodial Documents in its filessafekeeping. In connection with each delivery of Custodial Documents hereunder to the Document Custodian, the Collateral Manager shall provide to the Document Custodian a copy of the Loan Asset Schedule together with the electronic file required above.
(ivii) With respect On a monthly basis (concurrently with the delivery of each Collateral Report), the Document Custodian shall provide a written report to the documents comprising Collateral Agent, the Administrative Agent and the Collateral Manager identifying for each Loan Asset for which it holds Custodial Documents the Collateral Obligation Fileidentification number, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting original principal balance of such Collateral Obligation File received by it for and the exclusive use and benefit name of the Secured Parties and Obligor with respect to such related Collateral Obligation.
(iii) make disposition thereof only Notwithstanding any provision to the contrary elsewhere in accordance the Loan Documents, the Document Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the terms other Loan Documents or otherwise exist against the Document Custodian. Without limiting the generality of this Agreement or with written instructions furnished the foregoing, it is hereby expressly agreed and stipulated by the Agent; provided, other parties hereto that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Document Custodian shall accept only written instructions of an Executive Officer, in the case not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Document Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager, Manager hereunder or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesunder any other Loan Document.
(vii) The Document Custodian agrees to cooperate with the Controlling Parties (through the Administrative Agent) and the Collateral Agent and deliver any Custodial Documents to the Collateral Agent, Controlling Parties, the Collateral Manager or the Borrower (pursuant to a written request in the form of Exhibit I), as applicable, as requested in order to take any action that the Controlling Parties deem necessary or desirable in order for the Collateral Agent or the Controlling Parties to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VI. In the event that (i) the Borrower, Document Custodian receives instructions from the Agent, any Collateral Agent, the Collateral ManagerManager or the Borrower which conflict with any instructions received by the Controlling Parties, the Collateral Document Custodian or shall rely on and follow the Collateral Agent shall be served instructions given by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or the Controlling Parties (through the Administrative Agent).
(ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with The Controlling Parties (through the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable LawAdministrative Agent) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Document Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Document Custodian hereunder, the Collateral Document Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the AgentControlling Parties; provided that that, the Collateral Document Custodian shall not be required to take any action hereunder at the request of the AgentControlling Parties, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Document Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Document Custodian requests the consent of the Agent Controlling Parties and the Collateral Document Custodian does not receive a consent (either positive or negative) from the Agent Controlling Parties within ten (10) 10 Business Days of its receipt of such request, then the Agent Controlling Parties shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Document Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, Document Custodian or the AgentControlling Parties. The Collateral Document Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless an Administrative Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Document Custodian has received knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceDocument Custodian.
Appears in 1 contract
Samples: Credit Agreement (AB Private Credit Investors Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) 1. The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Investment Manager, the Facility Agent and each Lender Agent.
(ii) 2. With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) 3. The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) 4. With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) 5. The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) 6. In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) 7. The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) 8. The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Agreement (FS KKR Capital Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.2210.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Investment Manager, the Administrative Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Administrative Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS Investment Corp III)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Collateral Obligation Files and without any reviewRequired Loan Documents, the Collateral Custodian shall send notice related Loan Asset Schedule and a hard copy of such receipt to the Collateral ManagerLoan Asset Checklist (provided, the Agent and each Lender Agent.
however, that if more than one hundred (ii100) With respect to each Collateral Obligation File which has been or will be Required Loan Documents are delivered at one time to the Collateral Custodian, the Collateral Custodian shall have additional time as it determines is acting exclusively reasonably necessary to conduct such review), the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the custodian Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the Secured PartiesUCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and has (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents on their face based on the information provided on the Loan Asset Checklist and the Collateral Custodian shall be under no instructions duty or obligation to hold inspect, review or examine any Collateral Obligation File such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the benefit of represented purpose, any Person assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the Secured Parties and undertakes conclusion of such review, the Collateral Custodian shall determine that (I) the original balance of the Loan Asset with respect to perform such duties and only such duties which it has received Required Loan Documents is less than as are specifically set forth in this Agreementon the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In so addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form. In performing its duties hereunder, the Collateral Custodian shall be entitled to the protections, benefits and immunities provided to the Collateral Agent, mutatis mutandis.
(ii) In taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All Required Loan Documents in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at 0000 Xxxx Xxx, Florence, SC 29501, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request or direction of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan and Servicing Agreement (First Eagle Private Credit Fund)
Duties. The Collateral Custodian Manager shall performtake or cause to be taken all such actions as may be necessary or advisable to manage, service, administer and collect on behalf the Collateral Portfolio from time to time, all in accordance with Applicable Law and the Collateral Management Standard. Prior to the delivery of a Collateral Manager Termination Notice, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Collateral Manager has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Secured Parties, Collateral Manager shall include the following duties and obligationsfollowing:
(i) The supervising the Collateral Portfolio, including communicating with Obligors, considering amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) and each Lender (with a copy to the Collateral Agent and the Collateral Custodian, ) in respect of the servicing of the Collateral ‑146‑ Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the duly appointed agent Administrative Agent or any Lender may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the Secured Partiesdestruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for these purposes, acknowledges that the collection of the Collateral Manager shall deliver, on or prior Portfolio;
(iv) promptly delivering to the applicable Funding Date Administrative Agent (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20who will provide each Lender with a copy promptly upon receipt thereof), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to Agent or the Collateral Custodian Custodian, from time to time, such information and that the Collateral Custodian will provide the Collateral Agent with all servicing records (including information necessary for the Collateral Agent relating to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(iiits performance under this Agreement) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Managereach Lender, the Collateral Custodian or the Collateral Agent shall may from time to time reasonably request;
(v) identifying each Collateral Obligation in its internal servicing records to reflect the ownership of such Collateral Obligation by the Borrower;
(vi) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be served asserted by a third party with any type of levy, attachment, writ or court order an Obligor with respect to any Collateral Obligation File (or a document included within a Collateral Obligation File portion thereof) of which it has knowledge or has received notice; or (ii2) that could reasonably be expected to have a third party shall institute Material Adverse Effect;
(vii) using its commercially reasonable efforts to maintain the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the Collateral Portfolio;
(viii) directing the Account Bank to convert into Dollars any court proceeding by which amounts on deposit in the Canadian Dollar Account, the Euro Account and/or the GBP Account, as applicable, and any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other amounts denominated in an Eligible Currency other than Dollars, in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shalleach case, to the extent permitted by law, continue necessary to hold make all payments pursuant to the Monthly Report in accordance with Section 2.04;
(ix) directing the sale or substitution of Collateral Portfolio in accordance with Section 2.07.
(x) providing administrative assistance to the Borrower with respect to the purchase and maintain all sale of and payment for the Collateral Obligations;
(xi) instructing the Obligors and the administrative agents on the Collateral Obligations to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xii) delivering the Collateral Obligation Files that are and the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtCollateral Obligation Tape to the Collateral Custodian; ‑147‑
(xiii) preparing and delivering to the Borrower, the Collateral Custodian shall dispose Agent and the Administrative Agent on each Measurement Date (including promptly, but in any event within five (5) Business Days, following the date on which a Responsible Officer of the Borrower, the Collateral Manager or the Equityholder has actual knowledge of the occurrence of any Revaluation Event (including a Material Modification)) (or in the case of a Measurement Date that is a Determination Date, on the related Reporting Date) a Borrowing Base Certificate setting forth the calculation of each Borrowing Base as of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent Measurement Date; and
(xiv) complying with such determination. Expenses other duties and responsibilities as may be required of the Collateral Custodian incurred as Manager by this Agreement. It is acknowledged and agreed that in circumstances in which a result of such proceedings shall be borne by Person other than the Borrower.
(vii) The Agent may direct Borrower or the Collateral Custodian in writing to take any such incidental action hereunder. With Manager acts as lead agent with respect to other actions which are incidental to the actions specifically delegated to the any Collateral Custodian hereunderObligation, the Collateral Custodian Manager shall not be required perform its servicing duties hereunder only to take any such incidental action hereunderthe extent a lender under the related loan syndication Underlying Instruments has the right to do so. Notwithstanding anything to the contrary contained herein, but it is acknowledged and agreed that the performance by the Collateral Manager of its duties hereunder shall be required to act limited insofar as such performance would conflict with or to refrain from acting (and shall be fully protected result in acting or refraining from acting) upon the direction a breach of any of the Agentexpress terms of the related Underlying Instruments; provided that the Collateral Custodian Manager shall not be required (a) provide prompt written notice to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) upon becoming aware of such action, in the reasonable determination of the Collateral Custodianconflict or breach, (xb) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume determined that there is no Event other commercially reasonable performance that it could render consistent with the express terms of Defaultthe Underlying Instruments which would result in all or a portion of the servicing duties being performed in accordance with this Agreement, Unmatured Event and (c) undertake all commercially reasonable efforts to mitigate the effects of Default, Unmatured Collateral Manager Event such non‑performance including performing as much of Default or Collateral Manager Event the servicing duties as possible and performing such other commercially reasonable and/or similar duties consistent with the terms of Default, in each case unless it has actual knowledge of any such occurrencethe Underlying Instruments.
Appears in 1 contract
Samples: Loan and Servicing Agreement (MSD Investment Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.22), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Investment Manager, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody -128- and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any -129- Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (BlackRock TCP Capital Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Investment Manager, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files in electronic form delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all tangible Collateral Obligation Files in its possession possession, if any, in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at c/o DB Services Americas, Inc., 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that that, in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable nonappealablenon-appealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall delivertake or cause to be taken all such actions as may be necessary or advisable to manage, administer and collect on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian Portfolio from time to time, all in accordance with Applicable Law and that the Collateral Custodian will provide Management Standard. Prior to the occurrence of a Collateral Manager Termination Event, subject to the terms hereof (including, without limitation, Section 6.04), the Collateral Agent Manager has the sole and exclusive authority to make any and all decisions with all information necessary for respect to the Collateral Agent to credit each Collateral Obligation File Portfolio and take or refrain from taking any and all actions with respect to the Collection Account Collateral Portfolio. Without limiting the foregoing, the duties of the Collateral Manager shall include the following (subject to the limitations set forth herein):
(i) supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review;
(ii) maintaining, the Collateral Custodian shall send notice of such receipt or causing to be maintained, all necessary managing records with respect to the Collateral ManagerPortfolio and, providing such reports to the Administrative Agent, each Group Agent and each Lender Agent.in respect of the managing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder;
(iiiii) With respect maintaining and implementing, or causing to each be maintained and implemented, administrative and operating procedures (including, without limitation, an ability to recreate managing records evidencing the Collateral Obligation File which has been Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or will advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering, or causing to be delivered delivered, to the Collateral CustodianAdministrative Agent, each Group Agent and each Lender, from time to time, such information and managing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Group Agent and each Lender may from time to time reasonably request, so long as such information or records are within the possession of the Collateral Custodian Manager or may be obtained with commercially reasonable efforts;
(v) identifying each Loan Asset clearly and unambiguously in its managing records to reflect that such Loan Asset is acting exclusively as owned by the custodian Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) using its commercially reasonable efforts to maintain the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, and has no instructions in the Collateral Portfolio;
(vii) maintaining, or causing the Collateral Custodian to hold any Collateral Obligation maintain, the Loan Asset File for the benefit of any Person other than the Secured Parties and undertakes with respect to perform such duties and only such duties Loan Assets included as are specifically set forth in this Agreement. In so taking and retaining custody part of the Collateral Obligation FilesPortfolio; provided that, so long as the Collateral Manager is in possession of any Required Loan Documents other than in electronic form, the Collateral Manager will hold, or will cause the Collateral Custodian shall be deemed to be acting hold, such Required Loan Documents in a reasonably safe place;
(viii) directing the Collateral Agent and/or the Account Bank to make payments pursuant to the terms of the Collateral Management Report in accordance with Section 2.04;
(ix) providing advice to the Borrower with respect to the purchase and sale of and payment for the purpose of perfecting Loan Assets;
(x) instructing the Obligors and the administrative agents on the Loan Assets or Selling Institution, as applicable, to make payments directly into the Collection Account established and maintained with the Collateral Agent’s security interest therein under ;
(xi) delivering, or causing to be delivered, the UCC. Except upon compliance with Loan Asset Files and the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of Loan Asset Schedule to the Collateral Custodian.;
(iiixii) The Collateral Custodian shall maintain continuous custody ensuring any third party consents required to transfer record ownership of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified any Eligible Loan Asset to the Agent and the Collateral Manager in a written notice at least thirty (30) days Borrower are obtained on or prior to the Cut-Off Date of such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.Eligible Loan Asset;
(ivxiii) With respect providing, or causing to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; be provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of to the Borrower or the Collateral ManagerAdministrator, as applicable, all information available to it and necessary in order to assist the Borrower or a Responsible Officerthe Collateral Administrator, in the case as applicable, with its preparation and delivery of the Agent, concerning the use, handling and disposition each of the Collateral Obligation Files.Management Reports;
(vixiv) In designating any Principal Collections for reinvestment;
(xv) determining whether any Loan Asset is a First Lien Loan Asset, First Lien/Last Out Loan Asset, Second Lien Loan Asset, Recurring Revenue Loan Asset, Fixed Rate Obligation, Floating Rate Obligation, Noteless Loan Asset, Participation Interest, Equity Security and/or any other relevant classification for purposes of this Agreement (and, if necessary, determining whether any Equity Security is Margin Stock);
(xvi) determining whether any investment is a Permitted Investment;
(xvii) monitoring compliance and non-compliance with the event that Concentration Limitations and the Collateral Quality Tests as they relate to the acquisition of Loan Assets;
(xviii) determining whether any Loan Asset satisfies the definition of “Eligible Loan Asset”;
(xix) compiling and preparing certain reports on behalf of the Borrower; and
(xx) complying with such other duties and responsibilities as may be required of the Collateral Manager by this Agreement. For the avoidance of doubt, on each Measurement Date, the Collateral Manager (on behalf of the Borrower) shall re-determine the status of each Loan Asset as an Eligible Loan Asset as of such calculation date and provide notice of any change in the status of any Loan Asset to the Collateral Agent and, as a consequence thereof, (i) Loan Assets that were previously Eligible Loan Assets on a prior Measurement Date may be excluded from the calculation of the Borrowing Base on such Measurement Date, and (ii) Eligible Loan Assets that were previously not Eligible Loan Assets on a prior Measurement Date may be included in the calculation of the Borrowing Base on such Measurement Date. It is acknowledged and agreed that in circumstances in which a Person other than the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian Transferor or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order Manager acts as lead agent with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this AgreementLoan Asset, the party receiving such service Collateral Manager shall promptly deliver or cause to be delivered to the other parties to this Agreement (perform its managing duties hereunder only to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedingsa lender under the related loan syndication Loan Agreements has the right to do so. The Collateral Custodian shall, Notwithstanding anything to the extent permitted contrary contained herein, it is acknowledged and agreed that the performance by law, continue to hold and maintain all the Collateral Obligation Files that are the subject Manager of its duties hereunder shall be limited insofar as such proceedings pending performance would conflict with or result in a final, nonappealable order breach of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses any of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction express terms of the Agentrelated Loan Agreements; provided that the Collateral Custodian Manager shall not be required (a) provide prompt written notice to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking Administrative Agent upon becoming aware of such action, in the reasonable determination of the Collateral Custodianconflict or breach, (xb) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume determined that there is no Event other commercially reasonable performance that it could render consistent with the express terms of Defaultthe Loan Agreements which would result in all or a portion of the managing duties being performed in accordance with this Agreement, Unmatured Event and (c) undertake all commercially reasonable efforts to mitigate the effects of Default, Unmatured Collateral Manager Event such non-performance including performing as much of Default or Collateral Manager Event the managing duties as possible and performing such other commercially reasonable and/or similar duties consistent with the terms of Default, in each case unless it has actual knowledge of any such occurrencethe Loan Agreements.
Appears in 1 contract
Samples: Omnibus Amendment (Blue Owl Technology Finance Corp. II)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at c/o DB Services Americas, Inc., 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Senior Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall performand the Backup Servicer) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, on behalf the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent, the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iix) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)any Required Loan Documents, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a fireproof safe or fireproof file cabinet;
(specified on an accompanying Schedule of Collateral Obligations supplementx) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04;
(xi) directing the sale or substitution of Collateral Obligation File Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account in accordance established and maintained with the terms hereof. Promptly upon Collateral Agent;
(xiv) delivering the receipt of any such delivery of Collateral Obligation Loan Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered Loan Asset Schedule to the Collateral Custodian, the Collateral Custodian is acting exclusively ; and
(xv) complying with such other duties and responsibilities as the custodian may be required of the Secured Parties, Servicer by this Agreement. It is acknowledged and has no instructions to hold any Collateral Obligation File for the benefit of any agreed that in circumstances in which a Person other than the Secured Parties Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and undertakes to perform agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such duties and only such duties as are specifically set forth performance would conflict with or result in this Agreement. In so taking and retaining custody a breach of any of the Collateral Obligation Filesexpress terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance (b) have determined that there is no other commercially reasonable performance that it could render consistent with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession express terms of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody Loan Agreements which would result in all or a portion of all Collateral Obligation Files in its possession in secure facilities the servicing duties being performed in accordance with customary standards for this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such custody and shall reflect in its records the interest non-performance including performing as much of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at servicing duties as possible and performing such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents commercially reasonable or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance similar duties consistent with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlLoan Agreements.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. The Collateral Custodian From the Closing Date until its removal pursuant to Section 10.5, Trustee shall perform, on behalf of Agent and the Secured PartiesLender Group, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Trustee shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Portfolio Loan Documents delivered by or on behalf of Borrower pursuant to this Agreement and the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account other Loan Documents in accordance with the terms hereofand conditions of hereof or thereof, as applicable, as bailee for the purposes of the relevant Code, all for the benefit of the Lender Group and subject to the Trustee’s Lien. Promptly upon the Within two Business Days of its receipt of any Required Loan File, Trustee shall review such Required Loan File to confirm that (A) such Required Loan File has been executed and has no missing or mutilated pages, (B) there is evidence that Code and other filings (to extent identified on the related Loan Checklist) have been made, (C) if listed on the Loan Checklist, an insurance policy exists with respect to any real or personal property constituting the Portfolio Loan Collateral, and (D) the related original Portfolio Loan or Purchased Participation balance, loan number assigned to such Portfolio Loan or Purchased Participation, if any, and Portfolio Company name with respect to such Portfolio Loan or Purchased Participation is referenced on the related Loan Checklist and is not a duplicate Loan (based on the Loan number) (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by Trustee, in connection with each delivery of Collateral Obligation Required Loan Files hereunder to Trustee, Servicer shall provide to Trustee an electronic file (in Microsoft EXCEL® or a comparable format) that contains the Portfolio Loan number, Portfolio Company name, original loan balance and without any the related Loan Checklist. At the conclusion of such review, Trustee shall deliver to Servicer, Borrower and Agent a collateral receipt in the form of Exhibit C-2 attached hereto (a “Collateral Custodian Receipt”). If any Collateral Receipt discloses any deficiencies from the Review Criteria (a “Deficiency”) in any of the Required Loan Files, Trustee shall send notice promptly notify Agent and Servicer of such receipt Deficiency and provide them with an exception report specifying the Portfolio Loans or Purchased Participations which have a Deficiency and the Review Criteria that they fail to the Collateral Managersatisfy (each such report, the Agent and each Lender Agentan “Exceptions Report”).
(ii) With respect to each Collateral Obligation File which has been or will be delivered Trustee makes no representations as to the Collateral Custodianenforceability of any Portfolio Loan Documents or the existence, perfection or priority of any Lien on the Collateral Custodian is acting exclusively as the custodian of the Secured PartiesPortfolio Loan Collateral, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such Trustee’s duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian agent shall be deemed limited to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodianthose expressly contemplated herein.
(iii) The Collateral Custodian All Portfolio Loan Documents that are originals or printed copies shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure fire resistant facilities in accordance with Trustee’s customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets custody, at the office of the Collateral Custodian locations specified in Annex A on Schedule 10.2(b)(iii) attached hereto, or at such other offices office as shall be specified to the Agent and the Collateral Manager Servicer by Trustee in a written notice delivered at least thirty (30) 45 days prior to such change. Each Collateral Obligation File All Portfolio Loan Documents shall be marked with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesaccess.
(iv) With respect On the third Business Day of each month, Trustee shall provide to the documents comprising each Collateral Obligation File, the Collateral Custodian shall Agent and Servicer (iin a form acceptable to Agent and Trustee) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use an updated list of Portfolio Loan Documents in its possession and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlan updated Exceptions Report.
(v) The Collateral Custodian In performing its custodial duties, Trustee shall accept only written instructions use the same degree of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling care and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order attention as it employs with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files similar collateral that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File it holds as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowercustodian for others.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Loan and Security Agreement (NewStar Financial, Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change; provided that, any Collateral Obligation File that comes into the possession of the Collateral Agent in the form of a physical promissory note shall be maintained in fire-resistant vaults. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability or expense hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral ManagerFacility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of after its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law, the Risk and Collection Policies (if CGMSTCG is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Termination Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, negotiating and executing amendments, restatements, supplements and other modifications (including, without limitation, in respect of restructuring agreements, prepackaged plans and other documents related to restructuring arrangements), negotiating and providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall performand the Backup Servicer) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, on behalf the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the 129 DMSLIBRARY01\32370595.v1 event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Account Bank, the Backup Servicer, the Collateral Administrator or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, the Account Bank, the Collateral Custodian, the Backup Servicer, the Collateral Administrator or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent, the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Risk and Collection Policies;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iix) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)any Required Loan Documents, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a fireproof safe or fireproof file cabinet;
(specified on an accompanying Schedule of Collateral Obligations supplementx) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04;
(xi) directing the sale or substitution of Collateral Obligation File Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account in accordance established and maintained with the terms hereof. Promptly upon Collateral Agent; 130 DMSLIBRARY01\32370595.v1
(xiv) delivering the receipt of any such delivery of Collateral Obligation Loan Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, Updated Assigned Value, and Value Adjusted Assigned Value, including, without limitation, taking all actions necessary (including paying the Collateral Custodian is acting exclusively as the custodian compensation of the Secured Parties, Nationally Recognized Valuation Firms) in establishing and has no instructions to hold any Collateral Obligation File for maintaining the benefit Scheduled Valuation Process in accordance with Section 6.02(d) below; and
(xvi) complying with such other duties and responsibilities as may be required of any the Servicer by this Agreement. It is acknowledged and agreed that in circumstances in which a Person other than the Secured Parties Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and undertakes to perform agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such duties and only such duties as are specifically set forth performance would conflict with or result in this Agreement. In so taking and retaining custody a breach of any of the Collateral Obligation Filesexpress terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance (b) have determined that there is no other commercially reasonable performance that it could render consistent with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession express terms of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody Loan Agreements which would result in all or a portion of all Collateral Obligation Files in its possession in secure facilities the servicing duties being performed in accordance with customary standards for this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such custody and shall reflect in its records the interest non-performance including performing as much of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at servicing duties as possible and performing such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents commercially reasonable or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance similar duties consistent with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlLoan Agreements.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Duties. The (i) Upon the Collateral Custodian shall perform, on behalf Agent's receipt of (A) a Default Notice from any Secured Creditor giving notice of a Major Default and (B) written notice from the Directing Creditors directing the Collateral Agent to take specific collection or foreclosure action under any Security Instrument for the benefit of the Secured PartiesCreditors (an "ENFORCEMENT DIRECTIVE"), the following duties Collateral Agent shall undertake to proceed as directed as soon as possible and obligations:
in no event later than two (i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (32) Business Days after receipt of both such Funding Date, except as set forth in Section 10.20), notices. All Enforcement actions undertaken by the Collateral Obligation Files delivered to it for each Collateral Obligation listed on Agent, whether or not directed by the Schedule of Collateral Obligations attached to the related Asset Approval RequestDirecting Creditors, shall be in accordance with applicable law. The Collateral Custodian acknowledges that in connection with Agent shall deliver a copy of any Asset Approval Request, additional Collateral Obligation Files Default Notice and any Enforcement Directive to each Secured Creditor not signatory thereto within two (specified on an accompanying Schedule 2) Business Days of Collateral Obligations supplement) may be delivered to its receipt by the Collateral Custodian from time Agent. The Collateral Agent shall be entitled to timerely and act upon advice of counsel (including, without limitation, counsel to any Secured Creditor), independent accountants and that other experts selected by the Collateral Custodian will Agent with reasonable care concerning all matters pertaining to any duties hereunder. The Company promptly after the execution hereof shall provide the Collateral Agent with all information necessary for a list of the Purchasers and their contact information, and shall promptly inform the Collateral Agent to credit each Collateral Obligation File in writing of any changes to the Collection Account in accordance with identities of or contact information for the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender AgentPurchasers.
(ii) With If an Enforcement Directive shall have been given by any Directing Creditors, such Enforcement Directive cannot be rescinded except by (a) written notice of the Directing Creditors initially providing such Enforcement Directive or (b) order of a court of competent jurisdiction.
(iii) The Collateral Agent shall have no obligation to, nor liability for failure to, independently verify the existence or occurrence of any events set forth in any Default Notice it shall receive pursuant to SECTION 2(b)(i) hereof, and the Collateral Agent may rely thereon as to each matter stated therein as more fully set forth in SECTION 2(e) hereof.
(iv) The Collateral Agent shall not release, substitute, exercise any right or remedy, or take any other action with respect to any Collateral without the prior written consent of the Required Creditors, except in connection with an Enforcement Directive from the Directing Creditors. The Collateral Agent shall give notice to each Collateral Obligation File which has been Secured Creditor of any substantial or will be delivered to material action taken by the Collateral Custodian, the Agent pursuant to this SECTION 2(b)(iii) promptly after taking such action.
(v) The Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and Agent undertakes to perform only such duties and only such duties obligations as are specifically set forth in this Agreement, it being expressly understood by the Secured Creditors and the Company that there are no implied duties or obligations under this Agreement.
(vi) In connection with the pledge of the Real Property Collateral to the Collateral Agent, the Course Leases with respect to each Mortgage will be delivered to the Collateral Agent as soon after the date hereof as is reasonably practicable. Within two Business Days following receipt of the Course Leases the Collateral Agent shall review each such Course Lease to ascertain that such Course Lease relates to a property identified on SCHEDULE 1. In so taking and retaining custody of the Collateral Obligation Filesdoing, the Collateral Custodian shall be deemed Agent may rely on the purported due execution and genuineness of any signature thereon. If, within such two day period, the Collateral Agent finds any Course Lease not to have been executed or received or to be acting for unrelated to the purpose of perfecting properties listed on SCHEDULE 1, the Collateral Agent’s security interest therein under Agent shall, promptly upon the UCCconclusion of its review, notify the Company and the Secured Parties. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File The Company shall be released from the possession of deliver promptly to the Collateral Custodian.
(iii) The Agent any Course Leases that were not delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities Agent in accordance with customary standards for such custody and shall reflect in its records this section. Anything to the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of contrary herein notwithstanding, the Collateral Agent (other than documents delivered electronically) shall not be maintained in fire-resistant vaults liable for any acts or cabinets at omissions caused by or related to the office failure of the Collateral Custodian specified in Annex A or at such other offices as shall be specified Company to deliver to the Collateral Agent and the any Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation Fileincluding, but not limited to, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured PartiesCourse Leases and related documents, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms hereof.
(vii) The Collateral Agent shall have no responsibility for reviewing any Course Lease except as expressly provided in this SECTION 2(b)(vii). In reviewing any Course Lease pursuant to this SECTION 2(b)(vii), the Collateral Agent shall have, without limitation, no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Collateral Agent is the assignee or endorsee thereof), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed and that it appears to be what it purports to be.
(viii) It is understood and agreed upon by all of the parties hereto that the Collateral Agent shall, other than as set forth in Sections 2(b)(vi) and (vii), have no duty other than to receive or possess a pledge of the Collateral and shall have no duty to examine or investigate such Collateral for any defects under the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between Agreement.
(ix) Pursuant to the terms of this Agreement and the written instructions Security Instruments, upon request of the AgentRequired Creditors prior to a Major Default or upon request of any two Directing Creditors following a Major Default, and the Agent’s written instructions shall control.
(v) The delivery to the Collateral Custodian shall accept only written instructions Agent of an Executive Officer, two copies of a Request for Release in the case form of either EXHIBIT A or EXHIBIT B hereto from either the Borrower Required Creditors or the Collateral Managerany two Directing Creditors, or a Responsible Officeras applicable, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver release or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning released such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are is the subject of such proceedings pending the Request for Release to the designee of the Company, prior to a finalMajor Default, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses designee of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive following a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionMajor Default.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Collateral Agency and Intercreditor Agreement (National Golf Properties Inc)
Duties. (a) The Collateral Custodian Executive shall performact as the chief executive officer of the Company and shall report to the Company’s Board of Directors (the “Board”). The Executive will be responsible for managing and directing the Company’s operations and for such duties as may be assigned to him from time to time by the Board, and the Executive shall perform and discharge such duties diligently and faithfully, provided that such duties are consistent with the Executive’s position at the Company. Except when on vacation or for special circumstances, the Executive shall use his best efforts to, on a full-time basis, be (i) physically present (a) at the Company’s headquarters or (b) at another of the Company’s offices, or (ii) traveling on behalf of the Secured PartiesCompany. The Executive acknowledges that his position will require extensive travel.
(b) If the Board in writing directs the Executive to move his primary residence to the vicinity of the Company’s Jacksonville headquarters within nine months of the Effective Date, the following duties Executive shall move his primary residence to the vicinity of the Company’s Jacksonville headquarters within one year of the Effective Date; provided the Company and obligations:
Executive have in good faith negotiated a mutually acceptable relocation package for Executive. If the Board in writing directs the Executive to move his primary residence to the vicinity of the Company’s Jacksonville headquarters later than nine months after the Effective Date, but not later than two years after the Effective Date, the Executive shall move his primary residence to the vicinity of the Company’s Jacksonville headquarters within three months of the Board’s request; provided the Company and Executive have in good faith negotiated a mutually acceptable relocation package for Executive. Notwithstanding the foregoing, if the Executive moves his primary residence at the direction of the Board, the Company shall pay directly or reimburse Executive for the reasonable costs and expenses of relocating, including without limitation, (i) The Collateral Custodiantravel, as the duly appointed agent of the Secured Partiestransportation, for these purposesmeals, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the temporary lodging and similar related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to timemoving expenses, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect closing costs, real estate commissions, attorney’s fees and other similar costs reasonably incurred by Executive in the relocation. All expenses subject to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian income tax shall be deemed grossed up such that the state and federal tax effect to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCCExecutive is zero. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent Company and the Collateral Manager Executive agree to work in a written notice at least thirty (30) days prior good faith to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by minimize the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (potential gross-up to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determinationapplicable laws and regulations. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian Executive shall not be required to take any such incidental action hereunder, but shall be required relocate to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction vicinity of the Agent; provided that Company’s Jacksonville headquarters until his home in Chicago, Illinois is sold. If the Collateral Custodian shall not be required Board in writing directs the Executive to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it move his primary residence in accordance with the request or direction of any Secured Partyforegoing provisions, the Executive covenants and agrees to use his best efforts to sell his home.
(c) The Executive shall devote his full business time, attention, skills and energies to the extent that this Agreement provides such Secured Party performance of his duties hereunder and to the right to so direct promotion of the Collateral Custodian, or business of the AgentCompany. The Collateral Custodian shall Executive may not, during the Employment Period, be employed or engaged in any other business activity, whether or not be deemed such activity is pursued for gain, profit or other pecuniary advantage, which would not allow him to have knowledge or notice contribute his full business time, attention, skills and energies to the performance of his duties hereunder and to the promotion of the occurrence business of an Event the Company without the written consent of Default, Unmatured Event the Chairman of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice Company. Nothing in this paragraph will be construed as preventing the Executive from investing his personal assets in businesses which do not compete with the Agent, Collateral Manager or Company and engaging in not-for-profit and civic activities that do not interfere with the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceExecutive’s duties hereunder.
Appears in 1 contract
Samples: Employment Agreement (A21 Inc)
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents Delivered (as defined in the Pledge and Security Agreement) in physical form at one of its offices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and from time to time upon notice to the Borrower, the Investment Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) five Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Investment Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such receipt documents shall have been delivered by the Borrower to or otherwise made available to the Collateral Manager, the Agent and each Lender Administrative Agent).
(ii2) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as Custodial Office and shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Affiliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.management
Appears in 1 contract
Duties. The From the Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents in electronic form delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents and without any reviewthe related Loan Checklist, the Collateral Custodian shall send notice of review the Required Loan Documents to confirm that (A) the Obligor name matches the Loan Checklist, (B) such receipt Required Loan Documents, if applicable, have been executed by the parties thereto (either the original or a copy, as indicated on the Loan Checklist) and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral ManagerCustodian, and (D) the related original Loan balance (based on a comparison to the note or assignment agreement, as applicable), is greater than or equal to the loan balance listed on the related Loan Tape (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Checklist which contains the Loan information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each Loan. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian is acting exclusively as the custodian unable to confirm clauses (A) or (D) of the Secured PartiesReview Criteria, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have ten (10) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Servicer has no instructions still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Custodian shall promptly notify the Borrower and the Administrative Agent of such determination by providing a written report to hold such persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan fails to satisfy. In addition, if requested in writing in the form of Exhibit G by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Collateral Obligation File for Loan which fails to satisfy a Review Criteria to the benefit of any Person other Borrower. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that, the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments USActive 57833767.7 therein; provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of All original Required Loan Documents delivered to the Collateral Agent (other than documents delivered electronically) Custodian, if any, shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified located in Annex A Massachusetts or at DTCC Xxxxxxx Xxxxxx Xxxxxx, 000 Xxxxxxxxxx Xxxx Xxxxxx Xxxx, XX 00000, Attn: 5th floor/NY Window/Xxxxxx Xxxxxx, FBO: State Street Bank & Trust for account XXXX (SSB Fund Number), or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep clearly segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to North Haven and its Affiliates and its Subsidiaries; provided that, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan for which it holds Required Loan Documents and the applicable Review Criteria that any Loan fails to satisfy.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall accept only written instructions of an Executive Officernot have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, in and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the case other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the Borrower or foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Manager, Custodian shall not be required to exercise any discretion hereunder and shall have no investment or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesmanagement responsibility.
(vi) In the event that (i) the BorrowerIf, the Agent, any Agent, the Collateral Managerin performing its duties under this Agreement, the Collateral Custodian or is required to decide between alternative courses of action, the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with Custodian may request written instructions from the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered Servicer as to the other parties to this Agreement (to course of action desired by the extent not prohibited by Applicable Law) copies of all court papers, orders, documents Servicer; provided that if a Termination Event or Unmatured Termination Event occurs and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtis continuing, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by request written instructions from the Agent in writing, which shall give a direction consistent with such determinationAdministrative Agent. Expenses of If the Collateral Custodian incurred as a result of does not receive such proceedings instructions within two (2) Business Days after it has requested them, the Collateral Custodian may, but shall be borne under no duty to, take or refrain from taking any such courses of action. The Collateral Custodian shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice. USActive 57833767.7
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit G), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the BorrowerBorrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article X. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(viiii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that that, the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received actual knowledge of such matter or written notice from thereof is received by the AgentCollateral Custodian. Notice or knowledge of any matter by Xxxxx Fargo in its capacity as Administrative Agent or Lender and other publically filed information shall not constitute actual knowledge of a Responsible Officer of the Collateral Custodian or notice to the Collateral Custodian.
(iv) The parties hereto acknowledge that, Collateral Manager or in accordance with the Borrower referring to this Agreement, describing such event Customer Identification Program requirements under the USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume request, including the Borrower’s USActive 57833767.7 name, physical address, tax identification number and other information, that there is no Event of Default, Unmatured Event of Default, Unmatured will help the Collateral Manager Event of Default or Collateral Manager Event of DefaultCustodian to identify and verify the Borrower’s identity (and, in each case unless it has actual knowledge certain circumstances, the beneficial owners thereof), such as organizational documents, certificate of any such occurrencegood standing, license to do business, or other pertinent identifying information.
Appears in 1 contract
Samples: Loan and Servicing Agreement (North Haven Private Income Fund LLC)
Duties. The Collateral Document Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Document Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Servicer shall deliver, on or prior to the applicable Funding Date (but deliver no more later than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request, as applicable. The Collateral Document Custodian acknowledges that in connection with any Asset Approval Request or the related Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian it from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Document Custodian, the Collateral Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Document Custodian.
(iii) The Collateral Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into held by the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Document Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Document Custodian and the Agent. The Collateral Document Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Document Custodian shall (i) act exclusively as Collateral Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Document Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agentthe Servicer, the Collateral Manager, the Collateral Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Document Custodian hereunder, the Collateral Custodian such party shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Document Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, Document Custodian (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Document Custodian requests the consent of the Agent and the Collateral Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Document Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodiansuch party, or the Agent. The Collateral Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default Event of Default unless the Collateral Document Custodian has received written notice from the Agent, Collateral Manager Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Servicer Event of Default,” or “Notice of Collateral Manager Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Ares Strategic Income Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at c/o DB Services Americas, Inc., 5000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time AmericasActive:18709990.5 to time, all in accordance with Applicable Law and the Servicing Standard. Prior to the occurrence of a Servicer Termination Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports, information and servicing records to the Administrative Agent and each Lender (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodian) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be reasonably requested hereunder or as the Administrative Agent or any Lender may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, the Collateral Agent or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, Collateral Custodian shall performor the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent of any material action, on behalf suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) using its commercially reasonable efforts to maintain the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iviii) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date AmericasActive:18709990.5 any Required Loan Documents (but no more other than three (3) Business Days after such Funding Date, except as set forth in Section 10.20electronic form), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a reasonably safe place;
(specified on an accompanying Schedule of Collateral Obligations supplementix) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide directing the Collateral Agent and/or the Account Bank to make payments pursuant to the terms of the Servicing Report in accordance with all information necessary Section 2.04;
(x) directing the sale or substitution of Collateral Portfolio in accordance with Section 2.07;
(xi) providing advice to the Borrower with respect to the purchase and sale of and payment for the Collateral Agent Loan Assets;
(xii) instructing the Obligors and the administrative agents on the Loan Assets to credit each Collateral Obligation File to make payments directly into the Collection Account in accordance established and maintained with the terms hereof. Promptly upon Collateral Agent;
(xiii) delivering the receipt of any such delivery of Collateral Obligation Files and without any reviewRequired Loan Documents, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Loan Asset Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent Loan Asset Checklist and the Collateral Manager in a written notice at least thirty (30) days prior Loan Tape to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall Administrator, in accordance with Article XII; and
(xiv) complying with such other duties and responsibilities as may be served required of the Servicer by this Agreement. It is acknowledged and agreed that in circumstances in which a third party with any type of levyPerson other than the Borrower, attachment, writ the Transferor or court order the Servicer acts as lead agent with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this AgreementLoan Asset, the party receiving such service Servicer shall promptly deliver or cause to be delivered to the other parties to this Agreement (perform its servicing duties hereunder only to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to a lender under the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it related loan syndication Loan Agreements has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencedo so.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) 1. The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and USActive 31506654.2531506654.28 that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Investment Manager, the Facility Agent and each Lender Agent.
(ii) 2. With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) 3. The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) 4. With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) 5. The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) 6. In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.Collateral
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other USActive 58353885.2 than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation -152- USActive 58353885.2 of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Duties. The Until its removal pursuant to Section 5(e), the Collateral Custodian shall perform, perform on behalf of the Secured PartiesAdministrative Agent and the Lenders, the following duties and obligations:
(iA) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files Required Asset Documents delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with by any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Pledgor in accordance with the terms hereofand conditions of this Pledge Agreement, all for the benefit of the Lenders and subject to the Lien thereon in favor of the Administrative Agent as agent for the Lenders. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review such Required Asset Documents to confirm that (A) such Required Asset Documents, to the extent indicated on the Asset Checklist, have been executed and, on their face, have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) are contained in the Asset File and have a file stamp set forth thereon, (C) a certificate of insurance (as set forth on the Asset Checklist) is contained in the Asset File, and (D) the related Original Principal Balance, Asset identification number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the Asset Checklist and without any the related Asset List that otherwise contains the Asset identification number, the Original Principal Balance and the name of the Obligor with respect to each related Asset. At the conclusion of such review, the Collateral Custodian shall send notice of deliver a receipt in the form attached hereto as Exhibit 5(b). The Servicer and the related Pledgor shall use commercially reasonable efforts to correct any non-compliance with a Review Criteria identified on such receipt to the Collateral Manager, the Agent and receipt. Two times each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodiancalendar month, the Collateral Custodian is acting exclusively as shall deliver to the custodian Servicer and the Administrative Agent an exception report identifying, with particularity, each Asset and each of the Secured Partiesapplicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and has no instructions approved by the Administrative Agent or as otherwise directed by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such exception report, the Collateral Custodian shall return any Asset which fails to hold any Collateral Obligation File for satisfy a Review Criteria to the benefit of any Person other applicable Person. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(B) In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent and the Lenders; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Asset Documents or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iiiC) The All Required Asset Documents kept by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule 5(b) attached hereto, or at such other offices office as shall be specified to the Administrative Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked with an appropriate identifying label electronically tracked and maintained in such a manner so as to permit retrieval and access by access. All notes and Loan Registers included in the Pledged Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files be clearly electronically or physically segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, maintained by the Collateral Custodian shall (i) act exclusively as Collateral Custodian for Custodian. At the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit reasonable request of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Initial Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent Days) deliver to the relevant actionAdministrative Agent copies of all Asset Files that have not been segregated.
(viiiD) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeperforming its duties, the Collateral Custodian may conclusively assume shall use the same degree of care and attention as it employs with respect to similar collateral that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceholds as collateral custodian.
Appears in 1 contract
Samples: Pledge Agreement (Capitalsource Inc)
Duties. The From the Closing Date until its removal pursuant to Section 13.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 12.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar Senior Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that shall take and retain custody of the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Asset Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation Asset listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestSchedule. The Collateral Custodian acknowledges that in connection with any Asset Borrowing or Reinvestment Request and the related Approval RequestNotice (if applicable), additional Collateral Obligation Asset Files (specified on an accompanying the applicable Collateral Asset Schedule of or supplement to the Collateral Obligations supplementAsset Schedule) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation Asset File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation Asset File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Asset Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Administrative Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5as provided herein, no Collateral Obligation Asset File or other document constituting a part of a Collateral Obligation Asset File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation Asset File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation Asset File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Asset Files clearly segregated from any other documents or instruments in its files.. USActive 57710049.13-127-
(iv) With respect to the documents comprising each Collateral Obligation Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case a Responsible Officer of the Borrower Servicer or the Collateral Manager, or a Responsible Officer, in the case of the Agent, Administrative Agent concerning the use, handling and disposition of the Collateral Obligation Asset Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Manager, Servicer or the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by lawLaw, continue to hold and maintain all the Collateral Obligation Asset Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation Asset File or a document included within such Collateral Obligation Asset File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.matter or written notice thereof is received by the Collateral Custodian. USActive 57710049.13-128-
Appears in 1 contract
Samples: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Capital Southwest Corp)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral CustodianCustodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take and retain custody of electronic copies of the items in the definition of Required Loan Documents (including any copies of original items described in clause (a) of such definition) and the Loan Asset Checklist, as in each case delivered by the duly appointed agent Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date . Within five (but no more than three (35) Business Days after of its receipt of any Required Loan Documents (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such Funding Date, except as set forth in Section 10.20items), the related Loan Asset Schedule and an electronic copy of the Loan Asset Checklist, the Collateral Obligation Files delivered Administrator shall review the items in the definition of Required Loan Documents to it for confirm that, on their face, (each Collateral Obligation item listed on in the Schedule of Collateral Obligations attached Loan Asset Checklist required to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time Administrator pursuant to time, and that this Agreement has been provided to the Collateral Custodian will provide Administrator (the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent Administrator, in connection with all each delivery of applicable Required Loan Documents hereunder to the Collateral Administrator, the Servicer shall provide to the Collateral Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Administrator) of the related Loan Asset Checklist which contains the Loan Asset information necessary with respect to the applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the Collateral Agent represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to credit each Collateral Obligation File to be on its face. If, at the Collection Account in accordance with the terms hereof. Promptly upon the receipt conclusion of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian Administrator shall send notice determine that the Review Criteria is not satisfied, the Collateral Administrator shall within one (1) Business Day notify the Servicer of such receipt determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Administrator’s notification to the Collateral ManagerServicer of its review of the Review Criteria, the Agent Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and each Lender AgentCollateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that neither the Collateral Agent’s security interest therein under Custodian nor the UCC. Except upon compliance with the provisions of Section 18.5Collateral Administrator makes any representations as to, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File and shall be released from responsible for, the possession existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral CustodianCustodian or the Collateral Administrator, as applicable.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest clause (a) of the Secured Parties therein. Each Collateral Obligation File which comes into the possession definition of the Collateral Agent (other than documents delivered electronically) Required Loan Documents in original form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at Citibank, N.A., 000 Xxxx Xxxxxx, Level “C”—Securities Vault, New York, NY 10022, Attention: Xx. Xxxxx Xxxxx (212-559-1207), OSCF LENDING II SPV, LLC, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each month, the Collateral Custodian and the Agent. The Collateral Custodian Administrator shall keep identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Obligation Files clearly segregated from Administrator shall identify any other documents or instruments in its files.
(iv) With respect applicable Review Criteria that any Loan Asset fails to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlsatisfy.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or nor the Collateral ManagerAdministrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerresponsibilities shall be read into this Agreement, the Agent, any Agent, the Collateral Manager, other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Agent shall be served Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by a third party with any type of levy, attachment, writ or court order with respect to any the other parties hereto that neither the Collateral Obligation File or a document included within a Custodian nor the Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File Administrator shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service exercise any discretion hereunder and shall promptly deliver have no investment or cause to be delivered to the other parties to this Agreement management responsibility.
(to the extent not prohibited by Applicable Lawi) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the extent permitted by lawCollateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), continue as applicable, as requested in order to hold and maintain all allow the Administrative Agent or the Collateral Obligation Files Agent to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of Administrative Agent.
(ii) The parties acknowledge and agree that the Collateral Custodian incurred is not expecting to receive a significant number of original Required Loan Documents. In the event the Collateral Custodian receives an amount in excess of its expectation, as determined in its sole discretion, the Collateral Custodian may either appoint a result sub-agent custodian, or require the Borrower to enter into a document custody agreement in form and substance reasonably acceptable to the Borrower directly with a separate custodian, in respect of such proceedings shall be borne by the Borroweroriginal Required Loan Documents.
(viiiii) The Administrative Agent may direct the Collateral Custodian in writing and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, or the Collateral Administrator, as applicable (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent and the Collateral Custodian or the Collateral Administrator, as applicable does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiv) The Neither the Collateral Custodian nor the Collateral Administrator shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. The Neither the Collateral Custodian nor the Collateral Administrator shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from thereof is received by it.
(v) The Borrower acknowledges that in accordance with the Agent, Collateral Manager or Customer Identification Program (CIP) requirements under the Borrower referring to this Agreement, describing such event USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume request including, but not limited to, its name, physical address, tax identification number and other information that there is no Event will help the Collateral Custodian to identify and verify its identity such as organizational documents, certificate of Defaultgood standing, Unmatured Event of Defaultlicense to do business, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceother pertinent identifying information.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian at the address of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice at least thirty (30) 30 days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Business Development Corp of America)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Custodian shall performPortfolio from time to time, on behalf all in accordance with Applicable Law and the Servicing Standard. Prior to the delivery of a Servicer Termination Notice, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Secured Parties, Servicer shall include the following duties and obligationsfollowing:
(i) The supervising the Collateral Portfolio, including communicating with Obligors, considering amendments, providing consents and waivers, enforcing and -122- collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Facility Agent (who will provide each Lender with a copy promptly upon receipt thereof) and each Lender (with a copy to the Collateral Agent and the Collateral Custodian, ) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the duly appointed agent Facility Agent or any Lender may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the Secured Partiesdestruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for these purposes, acknowledges that the collection of the Collateral Manager shall deliver, on or prior Portfolio;
(iv) promptly delivering to the applicable Funding Date Facility Agent (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20who will provide each Lender with a copy promptly upon receipt thereof), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to Agent or the Collateral Custodian Custodian, from time to time, such information and that the Collateral Custodian will provide the Collateral Agent with all servicing records (including information necessary for the Collateral Agent relating to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(iiits performance under this Agreement) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Managereach Lender, the Collateral Custodian or the Collateral Agent shall may from time to time reasonably request;
(v) identifying each Loan in its internal servicing records to reflect the ownership of such Loan by the Borrower;
(vi) notifying the Facility Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be served asserted by a third party with any type of levy, attachment, writ or court order an Obligor with respect to any Collateral Obligation File Loan (or a document included within a Collateral Obligation File portion thereof) of which it has knowledge or has received notice; or (ii2) that could reasonably be expected to have a third party shall institute Material Adverse Effect;
(vii) using its best efforts to maintain the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the Collateral Portfolio;
(viii) maintaining the Loan File with respect to Loans included as part of the Collateral Portfolio; provided that, if the Servicer is in possession of any court proceeding by which Required Loan Documents, the Servicer will hold such Required Loan Documents in a fireproof safe or fireproof file cabinet, except while such Required Loan Documents are in the process of being delivered to or received from the Collateral Custodian;
(ix) directing the Account Bank to convert into Dollars any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered amounts on deposit in the Canadian Dollar Account, the Euro Account and/or the GBP Account, as applicable, and any other amounts denominated in an Eligible Currency other than Dollars, in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shalleach case, to the extent permitted by law, continue necessary to hold make all payments pursuant to the Monthly Report in accordance with Section 2.04;
(x) directing the sale or substitution of Collateral Portfolio in accordance with Section 2.07.
(xi) providing administrative assistance to the Borrower with respect to the acquisition and maintain all sale of and payment for the Loans;
(xii) instructing the Obligors and the administrative agents on the Loans to make payments directly into the Collection Account established and maintained with the Collateral Obligation Agent;
(xiii) delivering the Loan Files that are and the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting Loan Tape to the Collateral Custodian;
(xiv) preparing and delivering (or directing disposition thereof. Upon final determination of such courtcausing the preparation and delivery of) to the Borrower, the Collateral Custodian shall dispose Agent and the Facility Agent on each Measurement Date a Borrowing Base Certificate setting forth the calculation of each Borrowing Base as of such Collateral Obligation File Measurement Date; and
(xv) complying with such other duties and responsibilities as may be required of the Servicer by this Agreement. It is acknowledged and agreed that in circumstances in which a Person other than the Borrower or the Servicer acts as lead agent with respect to any Loan, the Servicer shall perform its servicing duties hereunder only to the extent a document included within such Collateral Obligation File as directed lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and agreed that the performance by the Agent Servicer of its duties hereunder shall be limited insofar as such performance would conflict with or result in writing, which shall give a direction consistent with such determination. Expenses breach of any of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction express terms of the Agentrelated Loan Agreements; provided that the Collateral Custodian Servicer shall not be required (a) provide prompt written notice to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking Facility Agent (who will provide each Lender with a copy promptly upon receipt thereof) upon becoming aware of such action, in the reasonable determination of the Collateral Custodianconflict or breach, (xb) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume determined that there is no Event other commercially reasonable performance that it could render consistent with the express terms of Defaultthe Loan Agreements which would result in all or a portion of the servicing duties being performed in accordance with this Agreement, Unmatured Event and (c) undertake all commercially reasonable efforts to mitigate the effects of Default, Unmatured Collateral Manager Event such non-performance including performing as much of Default or Collateral Manager Event the servicing duties as possible and performing such other commercially reasonable and/or similar duties consistent with the terms of Default, in each case unless it has actual knowledge of any such occurrencethe Loan Agreements.
Appears in 1 contract
Samples: Loan and Security Agreement (North Haven Private Income Fund LLC)
Duties. The From the Closing Date until its removal pursuant to Section 13.05 or its resignation pursuant to Section 13.07, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 12.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to NF and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every Month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Duties. The From the Closing Date until its resignation or removal pursuant to Section 14.9, the Collateral Custodian shall perform, on behalf of the Secured Parties, perform the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall accept delivery and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation Related Contracts listed on the Schedule of Collateral Obligations attached related Document Checklist delivered by the Borrower pursuant to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files clause (specified on an accompanying Schedule of Collateral Obligations supplementb) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account above in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon All Related Contracts in the receipt physical possession of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice be kept in fire resistant vaults, rooms or cabinets at the Collateral Custodian Office. All Related Contracts in the physical possession of the Collateral Custodian shall be placed together with an appropriate identifying label and maintained in such receipt a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Related Contracts on its inventory system and will not commingle the physical Related Contracts with any other files of the Collateral Custodian other than those, if any, relating to the Collateral Manager, the Agent Borrower and each Lender Agentits subsidiaries.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRelated Contracts, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that, the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on the Collateral Loans or Related Contracts or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Related Contracts; provided further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The [Reserved.]
(iv) Notwithstanding any provision to the contrary elsewhere in the Loan Documents, the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files not have or be deemed to have any fiduciary relationship with any party hereto or any Secured Party in its possession in secure facilities in accordance with customary standards for such custody capacity as such, and no implied covenants, functions, obligations or responsibilities shall reflect in its records be read into this Agreement, the interest other Loan Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the Secured Parties therein. Each Collateral Obligation File which comes into foregoing, it is hereby expressly agreed and stipulated by the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of parties hereto that the Collateral Custodian specified in Annex A shall not be required to exercise any discretion hereunder and shall have no investment or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agentmanagement responsibility. The Collateral Custodian shall keep not be deemed to assume any obligations or liabilities of the Borrower, the Administrative Agent or Collateral Obligation Files clearly segregated from Manager hereunder or under any other documents or instruments in its filesLoan Document.
(ivv) With respect After the occurrence and during the continuance of an Event of Default, the Collateral Custodian agrees to cooperate with the Collateral Agent (acting at the direction of the Controlling Parties) and promptly deliver any Related Contracts to the documents comprising each Collateral Obligation FileAgent as requested in order to take any action that the Controlling Parties deem necessary or desirable in order for the Collateral Agent to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder. In the event the Collateral Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received from the Collateral Agent (acting at the direction of the Controlling Parties) at any time other than following the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for rely on and follow the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished given by the Collateral Agent; provided, that in . After the event occurrence and during the continuance of a conflict between the terms an Event of this Agreement and the written instructions of the AgentDefault, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept rely on and follow only written the instructions of an Executive Officer, in given by the case of Collateral Agent and shall not follow any instructions given by the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the The Collateral Manager, the Collateral Custodian Agent or the Collateral Administrative Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with each acting at the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(viiControlling Parties) The Agent may direct the Collateral Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Collateral Agent or Administrative Agent, as applicable; provided that the Collateral Custodian shall not be required to take any such action hereunder at the request direction of the Administrative Agent, the Collateral Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received been provided with an indemnity agreement which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent or Collateral Agent, as applicable, and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent or the Collateral Agent, as applicable, within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent or the Collateral Agent, as applicable, shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Credit Agreement (Golub Capital Private Credit Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Borrower shall cause the Servicer to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.2110.23), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian Agent will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the USActive 31637433.4 -146- provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that shall take and retain custody of the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Asset Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation Asset listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestSchedule. The Collateral Custodian acknowledges that in connection with any Asset Borrowing or Reinvestment Request and the related Approval RequestNotice (if applicable), additional Collateral Obligation Asset Files (specified on an accompanying the applicable Collateral Asset Schedule of or supplement to the Collateral Obligations supplementAsset Schedule) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation Asset File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation Asset File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Asset Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Administrative Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5as provided herein, no Collateral Obligation Asset File or other document constituting a part of a Collateral Obligation Asset File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation Asset File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation Asset File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Asset Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case a Responsible Officer of the Borrower Servicer or the Collateral Manager, or a Responsible Officer, in the case of the Agent, Administrative Agent concerning the use, handling and disposition of the Collateral Obligation Asset Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Manager, Servicer or the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by lawLaw, continue to hold and maintain all the Collateral Obligation Asset Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation Asset File or a document included within such Collateral Obligation Asset File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Samples: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents Delivered (as defined in the Pledge and Security Agreement) in physical form at one of its of fices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”); provided that, for the avoidance of doubt, the only Custody Documents required to be held in physical custody by the Collateral Custodian under this Agreement are the Escrowed Assignment Agreement Documents. The Collateral Custodian may change the Custodial Of f ice at any time and f rom time to time upon notice to the Borrower, the Collateral Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Of f ice shall be an of f ice of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) f ive Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of such receipt any Custody Document hereunder to the Collateral Manager, extent such Custody Document is of a type not approved for deposit into the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to custodial vault of the Collateral Custodian, ; provided that
(1) the Collateral Custodian is acting exclusively as notifies the custodian Collateral Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Secured Parties, Collateral Custodian to accept and has no instructions to hold any Collateral Obligation File for the benefit such documents shall not result in a default or an Event of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Default with
(2) In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as Custodial Office and shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Af f iliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default Borrower or Collateral Manager Event hereunder or under any other Transaction Document.
(5) The Collateral Custodian shall have no obligation to review or verify whether the Borrower or the Collateral Manager on its behalf has obtained and delivered (or made available to the Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of Default Event of Default unless Collateral Obligations hereunder, and the Collateral Custodian has received written notice from shall have no obligation to maintain the Agent, Collateral Manager or Transaction Data Room on behalf of the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceBorrower.
Appears in 1 contract
Samples: Credit Agreement (New Mountain Private Credit Fund)
Duties. The Collateral From the Closing Date until its removal pursuant to Section 8.5, the Document Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Document Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 hereof in accordance with the terms hereof. Promptly upon and conditions of this Agreement, all for the receipt benefit of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender AgentSecured Parties.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Document Custodian shall be deemed to be acting for as the purpose agent of perfecting the Collateral AgentSecured Parties; provided that the Document Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; provided further that the Document Custodian’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties shall be released from the possession of the Collateral Custodianlimited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A Section 5.7(c) hereof, or at such other offices office as shall be specified to the Agent Lead Lender and the Collateral Manager by the Document Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by access. The Document Custodian shall segregate the Collateral Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Document Custodian other than those, if any, relating to USB and its Affiliates and its Subsidiaries; provided, however, the Document Custodian shall segregate any commingled files upon written request of the Lead Lender and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesBorrower.
(iv) With respect On each Reporting Date, the Document Custodian shall provide a written report to the documents comprising each Collateral Obligation File, Lead Lender and the Collateral Custodian shall Manager (i) act exclusively as Collateral Custodian for in a form mutually agreeable to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Lead Lender and the written instructions of the Agent, the Agent’s written instructions shall controlDocument Custodian) identifying each Loan for which it holds Required Loan Documents.
(v) The Collateral Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Document Custodian shall accept only written instructions of an Executive Officernot have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, in and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the case other Transaction Documents or otherwise exist against the Document Custodian. Without limiting the generality of the Borrower foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Document Custodian shall not be required to exercise any discretion hereunder and shall have no investment or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesmanagement responsibility.
(vi) In the event that (i) The Document Custodian agrees to cooperate with the Borrower, the Agent, any AgentLead Lender, the Collateral Manager, the Collateral Custodian or Loan Agent and the Collateral Agent shall be served and deliver any Required Loan Documents to the Collateral Agent, the Loan Agent, the Collateral Manager or Lead Lender (pursuant to a written request in the form of Exhibit D), as applicable, as requested in order to allow the Collateral Manager, the Collateral Agent, the Loan Agent or the Lead Lender to take any action that the Lead Lender deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by a third party with the Borrower hereunder, or to enable the Collateral Manager, the Collateral Agent, the Loan Agent or the Lead Lender to exercise or enforce any type of levytheir respective rights hereunder, attachment, writ or court order including any rights arising with respect to Article X. In the event the Document Custodian receives instructions from the Collateral Agent, the Loan Agent, the Collateral Manager or the Borrower which conflict with any Collateral Obligation File or a document included within a Collateral Obligation File or instructions received by the Lead Lender, the Document Custodian shall rely on and follow the instructions given by the Lead Lender.
(ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent Lead Lender may direct the Collateral Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Document Custodian hereunder, the Collateral Document Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the AgentLead Lender; provided that the Collateral Document Custodian shall not be required to take any action hereunder at the request of the AgentLead Lender, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Document Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Document Custodian requests the consent of the Agent Lead Lender and the Collateral Document Custodian does not receive a consent (either positive or negative) from the Agent Lead Lender within ten (10) 10 Business Days of its receipt of such request, then the Agent Lead Lender shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Document Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Document Custodian, or the AgentLead Lender. The Collateral Document Custodian shall not be deemed to have notice or knowledge or notice of any matter hereunder, including a Termination Event, unless a Responsible Officer of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Document Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of such matter or written notice thereof is received by the Document Custodian.
(iv) If, in performing its duties under this Agreement, the Document Custodian is required to decide between alternative courses of action, the Document Custodian may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Lead Lender as to the course of action desired by it. If the Document Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Document Custodian may, but shall be under no duty to, take or refrain from taking any such occurrencecourses of action. The Document Custodian shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Document Custodian shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be fully protected in acting in accordance with such advice.
Appears in 1 contract
Samples: Facility Agreement (AB Private Credit Investors Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Investment Manager, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwiseother than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files in electronic form delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all tangible Collateral Obligation Files in its possession possession, if any, in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at 1000 Xxxxxx Xxxx Xxxxx, Xx. Xxxx, Xxxxxxxxx 55018, Attention: Transfer Agent Team – GDLC Funding II LLC or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it in physical form shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; providedprovided that, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable non-appealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Collateral Obligation Files and without any reviewRequired Loan Documents, the Collateral Custodian shall send notice related Loan Asset Schedule and a hard copy of such receipt to the Collateral ManagerLoan Asset Checklist (provided, the Agent and each Lender Agent.
however, that if more than one hundred (ii100) With respect to each Collateral Obligation File which has been or will be Required Loan Documents are delivered at one time to the Collateral Custodian, the Collateral Custodian shall have additional time as it determines is acting exclusively reasonably necessary to conduct such review), the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the custodian Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the Secured PartiesUCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and has (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents on their face based on the information provided on the Loan Asset Checklist and the Collateral Custodian shall be under no instructions duty or obligation to hold inspect, review or examine any Collateral Obligation File such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the benefit of represented purpose, any Person assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the Secured Parties and undertakes conclusion of such review, the Collateral Custodian shall determine that (I) the original balance of the Loan Asset with respect to perform such duties and only such duties which it has received Required Loan Documents is less than as are specifically set forth in this Agreementon the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In so addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form. In performing its duties hereunder, the Collateral Custodian shall be entitled to the protections, benefits and immunities provided to the Collateral Agent, mutatis mutandis.
(ii) In taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All Required Loan Documents in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at 0000 Xxxx Xxx, Florence, SC 29501, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request or direction of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Samples: Loan and Servicing Agreement (First Eagle Private Credit Fund)