Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bank’s resignation or removal as Collateral Administrator pursuant to Section 15.04 hereof. In such capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, and in providing to the Borrower and the Collateral Manager certain reports, calculations and other data (as may be mutually agreed upon by the parties hereto), which reports, calculations and other data the Borrower or the Collateral Manager on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports and calculations can be performed as required) under Section 8.06. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under this Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement. (b) The Collateral Administrator shall perform the following general functions from time to time: (i) Promptly, and in any event within 30 days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”); (ii) Update the Collateral Database promptly for changes and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this Agreement; (iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request; (iv) Track the receipt and daily allocation to the Collection Account with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day; (v) [Reserved]; (vi) [Reserved]; and (vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as the Borrower or Collateral Manager may reasonably request from time to time. (c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security). (d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administrator, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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. (e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 5 contracts
Samples: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Powers and Duties of Collateral Administrator. (a) U.S. Bank The Collateral Administrator shall act as Collateral Administrator pursuant to agent for the terms Company until the earlier of this Agreement, until U.S. Bank’s (i) its resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof or (ii) the termination of this Agreement pursuant to Section 6 or Section 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Company and the Collateral Investment Manager by in connection with maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, basis and in providing to the Borrower Company and the Collateral Investment Manager certain reports, schedules and calculations, all as more particularly described in Section 2(b) below (in each case, such reports, schedules and calculations shall be prepared in such form and other data (content, and in such greater detail, as may be mutually agreed upon by the parties hereto), which reports, calculations hereto from time to time and other as may be required by the Loan Agreement) based upon information and data received from the Borrower or the Collateral Manager on its behalf, Company and/or the Collateral Administrator is Investment Manager, as required to prepare be prepared and deliver delivered (or which are necessary to be performed prepared and delivered in order that certain reports other reports, schedules and calculations can be performed as requiredprepared and delivered) under Section 8.068.03 of the Loan Agreement. U.S. BankThe Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or Company under the Collateral Manager under this Loan Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower or the Collateral Manager Company under or pursuant to this the Loan Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 Within fifteen (15) days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”);
(ii) Update the Collateral Database promptly and on an ongoing basis for changes, including for ratings changes as provided by the Investment Manager, and to reflect the sale or other disposition of the Collateral Loans Portfolio Investments included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans assets constituting Collateral from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower Company or Collateral Investment Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Investment Manager on behalf of the BorrowerCompany, as the Collateral Administrator and the Investment Manager shall reasonably requestagree;
(iv) Track the receipt and daily allocation to the Interest Collection Account and the Principal Collection Account, as applicable, with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager daily reports reflecting such actions to the Collection Accounts report as of described in the close of business on the preceding Business DayLoan Agreement;
(v) [Reserved];Reasonably cooperate with the Investment Manager in the Investment Manager’s review of the reports as described in the Loan Agreement; and
(vi) [Reserved]; and
(vii) So long as Not later than the same Person serves as both Collateral Administrator and as Collateral Agent under this date specified therefor in the Loan Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator shall prepare the relevant report by calculating, using the information contained in performing its ordinary the Collateral Database and provide the results of such calculations to the Administrative Agent function pursuant to this Agreement (and the Investment Manager so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as that the Borrower or Collateral Investment Manager may reasonably request from time to timeconfirm such results.
(c) The Collateral Investment Manager shall assist and cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Investment Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations determinations, designations and selections made by it as required or permitted to be made by it or the Borrower Company (or Investment Manager on its behalf) under this the Loan Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Investment Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and is reasonably needed to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral BalanceNet Asset Value, Base Rate, Excess Interest Proceeds, the aggregate principal balance of Portfolio Investments, the Coverage Event Cure Period, satisfaction of the Compliance Condition, the occurrence of a Coverage Event, a Coverage Event Cure or a Coverage Event Failure, and compliance with the Concentration Limitations and the Borrowing BaseLimitations, as applicable) and to permit the Company and the Investment Manager to perform their obligations under the Loan Agreement with respect thereto and any other information that may be reasonably required under this the Loan Agreement with respect to a Collateral Loan Portfolio Investment (including as to its designation status as a Defaulted Delayed Funding Term Loan, Ineligible Loan Asset Based Loan, Second Lien Loan, Revolving Credit Facility, Synthetic Security, Structure Finance Obligation, Corporate Bond, Current Pay Obligation, Delayed Funding Term Loan, Senior Secured Loan, Warranty Portfolio Investment or Equity SecurityLetter of Credit).
(d) If, in performing its duties under this Agreement, . Nothing herein shall obligate the Collateral Administrator is required to decide between alternative courses determine independently the correct characterization or categorization of action any item of Collateral under the Loan Agreement (it being understood that any such characterization, classification or is otherwise uncertain as to categorization shall be based exclusively upon the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed determination and notification received by the Collateral Administrator, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Investment Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action). The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except have no obligation to determine whether any Asset meets the extent it has already taken, definition of (i) Collateral or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.ii)
Appears in 2 contracts
Samples: Collateral Administration Agreement (FS Investment Corp III), Collateral Administration Agreement (FS Investment Corp II)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement and, to the extent applicable, the Credit Agreement, until the earlier of the termination of this Agreement or U.S. Bank’s resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Company and the Collateral Manager by in connection with maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, and in providing to the Borrower Company and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Section 2(b) below (in each case in such form and content, and in such greater detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Credit Agreement), based upon information and data received from the Company, the Collateral Manager or Third Party Sources (as defined below), which reports, schedules and calculations and other data the Borrower Company or the Collateral Manager on its behalf, and/or the or Collateral Administrator on the Company’s behalf is required to prepare and deliver (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.06Sections 8.9 and 9.1(c) of the Credit Agreement. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement and the Credit Agreement. By entering into, or performing its duties under, this Agreement and the Credit Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Company or Collateral Manager under the Credit Agreement, or of the Collateral Manager under this the Collateral Management Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Company under or pursuant to the Credit Agreement or of the Collateral Manager under or pursuant to this the Collateral Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 days after the Closing Date, create a collateral database containing such specifications and information with respect to the Collateral Loans and Eligible Investments as the Collateral Manager and Collateral Administrator shall reasonably agree (the “Collateral Database”);
(ii) Assist the Collateral Manager in reconciling any variance between the Collateral Database and the Collateral Manager’s version of the same and the test results (whether required under the Credit Agreement or otherwise) and, in connection with the ongoing management of the Collateral portfolio by the Collateral Manager, including the evaluation of proposed trades, use reasonable efforts to resolve promptly any variance or other discrepancy between the two models;
(iii) Update the Collateral Database promptly daily for changes, including for ratings changes and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Collateral Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower Company or Collateral Manager as may be reasonably required under the Credit Agreement or requested by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or by Third Party Sources, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this the Credit Agreement;
(iiiiv) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the BorrowerCompany, as the Collateral Administrator and the Collateral Manager shall reasonably requestagree, including by way of reasonable electronic access (by access to the Collateral Administrator’s internet website) to the reports generated by the Collateral Administrator pursuant to this Agreement;
(ivv) Track the receipt and daily allocation to the Interest Collection Account or Principal Collection Account with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, by 11:00 a.m. (New York time) on each Business Day, provide to the Collateral Manager daily reports the Daily Report reflecting such actions to the Collection Accounts accounts as of the close of business on the preceding Business Day;
(v) [Reserved]Day in accordance with the terms of Section 8.9 of the Credit Agreement;
(vi) [Reserved]Prepare, on behalf of the Company, and arrange for delivery in accordance with the Credit Agreement within the time frames stated therein, the Collateral Report and Payment Date Report pursuant to the terms of Section 8.9 of the Credit Agreement (and cooperate with the Collateral Manager, on behalf of the Company, in connection with the comparison of information and discrepancies, if any, as contemplated by the provisions of said Section 8.9 of the Credit Agreement), on the basis of the information contained in the Collateral Database as of the applicable determination date for each such report, or to the extent not contained in the Collateral Database, provided by the Collateral Manager, the Lenders, or otherwise maintained by U.S. Bank, in its capacity as Collateral Agent;
(vii) After the date that is 30 days after the Closing Date (or such earlier date as shall be agreed to by the Collateral Administrator), upon the written request of the Company or Collateral Manager on its behalf, on any Business Day and within three hours after the Collateral Administrator’s receipt of such request (provided such request is received by 12:00 Noon (New York time)) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Administrator shall perform the following functions: (A) as of the date the Collateral Manager commits on behalf of the Company to purchase or originate a Collateral Loan to be included in the Collateral and (B) as of the date of such request, for the purpose of evaluating the inclusion of a proposed Collateral Loan in the Collateral, perform a pro forma calculation of the tests and other requirements constituting the Eligibility Criteria, in each case, based upon information contained in the Collateral Database and information furnished by the Collateral Manager or Company as to the proposed Collateral Loan, compare the results thereof against the applicable requirements set forth in the definition of Eligibility Criteria and report the results thereof to the Company and Collateral Manager in a mutually agreed format. For the avoidance of doubt, the foregoing requests may be made in respect of any number of hypothetical trades, and no such request shall obligate the Company or Collateral Manager to make the actual trade or commitment;
(viii) Upon the Collateral Administrator’s receipt on any Business Day of written notification from the Company or the Collateral Manager on its behalf of its intent to sell, in accordance with Section 10.1(a) of the Credit Agreement, a Collateral Loan (other than a Defaulted Loan, a Credit Risk Loan, a Credit Improved Loan or an Equity Security), the Collateral Administrator shall determine and report to the Company and Collateral Manager whether, after giving effect to such sale, the Aggregate Principal Balance of all such Loans sold under Section 10.1(a) during the preceding period of twelve calendar months (or, for the first twelve calendar months after the Closing Date, during the period commencing on the Closing Date) does not exceed 20% of the Total Capitalization as of the first day of such twelve calendar month period (or as of the Closing Date, as the case may be);
(ix) Reasonably cooperate with the independent accountants appointed by the Company (or the Collateral Manager on its behalf) in the preparation by such accountants of the reports required under and as contemplated by Section 5.36 of the Credit Agreement;
(x) Reasonably cooperate with the Company and the Collateral Manager in providing the Rating Agency then rating the Loans with such additional information as may be reasonably requested by the Rating Agencies and that can be provided without unreasonable burden or expense;
(xi) Reasonably cooperate with the Company and the Collateral Manager in providing the Administrative Agent and Lenders with such additional information as may be reasonably requested by them in accordance with the Credit Agreement and that can be provided without unreasonable burden or expense; and
(viixii) So long as the same Person serves as both Collateral Administrator hereunder and as Collateral Agent under this the Credit Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this the Credit Agreement), or as may be required by this the Credit Agreement, as the Borrower Company or Collateral Manager may reasonably request from time to time.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the calculations contained in the Monthly Collateral Reports and Payment Date Reports. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower Company (or Collateral Manager on its behalf) under this the Credit Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or under the Credit Agreement or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) or thereunder and any other information that may be requested by the Collateral Administrator or is reasonably required under this the Credit Agreement with respect to any item of Collateral. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of any item of Collateral under the Credit Agreement (it being understood that any such characterization or categorization shall be based exclusively upon the determination and notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and verify the contents of the aforesaid reports, instructions, statements and certificates and shall send such reports, instructions, statements and certificates to the Company for execution. In addition, the Collateral Manager shall provide prompt notice to the Collateral Administrator upon its becoming aware that a Collateral Loan (including as to its designation as has become a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administrator, the Collateral Administrator may (but shall not be obligated to) request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower Company or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively relyrely without liability on its part, as to the course of action or methodology desired by it, and shall be entitled to refrain from action pending receipt of such instruction; provided that in the event of conflicting instructions, the instructions of the Collateral Manager shall prevail. If the Collateral Administrator does not receive such instructions within two five Business Days (or such earlier time as the Collateral Administrator is required to act (as identified in such request)) after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action; provided that the Collateral Administrator promptly notifies the Collateral Manager and the Company which course of action, if any, it has decided to take. The Collateral Administrator shall act in accordance with instructions received after such twofive-Business Day period (or such earlier period specified by the Collateral Administrator in its request) except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 2 contracts
Samples: Collateral Administration Agreement (AB Private Credit Investors Corp), Collateral Administration Agreement (AB Private Credit Investors Corp)
Powers and Duties of Collateral Administrator. (a) U.S. Bank The Issuer hereby appoints State Street to act as Collateral Administrator and State Street shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. BankState Street’s resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Collateral Manager in connection with monitoring the Collateral solely by maintaining a database of certain characteristics with respect to of the Collateral Obligations on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Manager and certain other parties as specified in the Indenture certain reports, calculations schedules and other data calculations, all as more particularly described in Section 2(b) below (in each case in such form and content, and in such greater detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer and/or the Collateral Manager and/or certain other parties as specified in the Indenture, which reports, schedules and calculations and other data the Borrower Issuer or the Collateral Manager Manager, on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be prepared, delivered, or performed as required) under Section 8.06the Indenture. U.S. BankState Street’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture, or of the Collateral Manager under this Agreementthe Management Agreement or the Indenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer, the Collateral Manager or the Trustee under or pursuant to the Indenture or of the Collateral Manager under or pursuant to this Agreementthe Management Agreement or the Indenture.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 days after the Closing Date, create Create a collateral database with respect to the Collateral comprised of the Collateral Obligations credited to the Accounts from time to time, as provided in this Agreement (the “Collateral Database”);
(ii) Update the Collateral Database promptly for changes changes, including for ratings changes, and to reflect the sale or other disposition of the Collateral Loans Obligations, Equity Securities and Eligible Investments included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral purchase of additional Loans Collateral Obligations, Eligible Investments and Equity Securities from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or the Collateral Manager (on behalf of the Borrower Issuer or Collateral Manager itself) as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to timetime or that may be provided by the Trustee (based upon notices received by the Trustee from the issuer, or based on information maintained by U.S. Bank in its capacity as Collateral Agent trustee or agent bank under this Agreementan Underlying Instrument, or similar source);
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Accounts of Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
(iv) Prepare, on behalf of the Issuer, and arrange for delivery in accordance with the Indenture within the time frames stated therein, (A) the Monthly Report pursuant to the terms of Section 10.6(a) of the Indenture (and cooperate with the Collateral Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the last paragraph of said Section 10.6(a) of the Indenture), and (B) the Distribution Report pursuant to Section 10.6(b) of the Indenture, in each case, on the basis of the information contained in the Collateral Database as of the applicable date of determination;
(v) [Reserved];
(vi) [Reserved]; andReasonably cooperate with the Independent certified public accountants appointed by the Issuer in the preparation by such accountants of the reports required under Section 7.17 and Section 10.8 of the Indenture;
(vii) So long Reasonably cooperate with the Issuer and the Collateral Manager in providing the Applicable Rating Agencies with such additional information as may be reasonably requested by the same Person serves as both Collateral Administrator Applicable Rating Agencies and as Collateral Agent under this Agreement, provide that can be provided without unreasonable burden or expense;
(viii) [Reserved]
(ix) Provide other such other information with respect to the Collateral Obligations as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function as Trustee pursuant to this Agreement the Indenture (so long as it shall also serve as Collateral Agent Trustee under this Agreementthe Indenture), or as may be required by this Agreementthe Indenture, as the Borrower Issuer or Collateral Manager may reasonably request from time to timetime and that the Collateral Administrator determines, in its sole discretion, may be provided without unreasonable burden or expense.
(c) [Reserved]
(d) [Reserved]
(e) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the calculations contained in the Monthly Reports, the Distribution Reports and the calculations set forth in Section 2 hereof. Without limiting the generality of the foregoing, the Collateral Manager shall advise supply in a timely manner the Collateral Administrator of the results of fashion any determinations required or permitted to be made information maintained by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed need to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (hereunder, including without limitation, the Market Value of a Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and Obligation to the Borrowing Base, as applicable) extent required by the Indenture and any other information that may be reasonably required under this Agreement the Indenture with respect to a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Obligation and any Hedge Agreement, . The Collateral Manager shall notify the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the promptly upon a Collateral Administrator, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.Obligation becoming a
Appears in 1 contract
Samples: Collateral Administration Agreement (Barings BDC, Inc.)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall The Borrower hereby appoints BNYM as, and BNYM hereby accepts the appointment to act as as, the Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bankthe earlier to occur of (i) BNYM’s resignation or removal as the Collateral Administrator pursuant to Section 15.04 7 hereof and (ii) the termination of this Agreement pursuant to Section 6 hereof. In such capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by in connection with maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, basis as provided herein and in providing to the Borrower and the Collateral Manager certain reports, schedules and calculations, all as more particularly described in Section 2(b) below (in each case, such reports, schedules and calculations shall be prepared in such form and other data (content, and in such greater detail, as may be mutually agreed upon by the parties hereto), which reports, calculations hereto from time to time and other as may be required by the Credit Agreement) based upon information and data received from the Borrower or the Collateral Manager on its behalf, and/or the Collateral Administrator is Manager, as required to prepare be prepared and deliver delivered (or which are necessary to be performed prepared and delivered in order that certain reports other reports, schedules and calculations can be performed as requiredprepared and delivered) under Section 8.06Article VIII of the Credit Agreement. U.S. BankBNYM’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under this Agreementthe Credit Agreement or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreementthe Credit Agreement or any other Facility Document.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 thirty (30) days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”);
(ii) Update the Collateral Database promptly and on an ongoing basis for changes, including for ratings changes as provided by the Collateral Manager, and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Obligors from time to time, or based on information maintained by U.S. Bank BNYM in its capacity as Collateral Agent under this the Credit Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Administrator and the Collateral Manager shall reasonably requestagree, including by way of reasonable electronic access (by access to the Collateral Administrator’s internet website) to the reports generated by the Collateral Administrator pursuant to this Agreement;
(iv) Track the receipt and daily allocation of cash to the Collection Account (and any subaccounts thereto) with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Borrower and the Collateral Manager daily reports reflecting such actions to the Collection Covered Accounts as of the close of business on the preceding Business Day;
(v) [Reserved];.
(vi) [Reserved]Reasonably cooperate with the Independent Accountants appointed by the Borrower in the preparation by such accountants of the reports required under Section 8.09 of the Credit Agreement;
(vii) Not later than three (3) Business Days prior to the day on which each Monthly Report or Payment Date Report is required to be provided by the Borrower pursuant to Section 8.07 of the Credit Agreement, the Collateral Administrator shall prepare the relevant report using the information contained in the Collateral Database and, subject to the Collateral Administrator’s receipt from the Collateral Manager of information with respect to the Collateral that is required for the preparation of the Monthly Report or Payment Date Report, provide the results of such calculations to the Collateral Manager so that the Collateral Manager may confirm such results. Upon approval by the Collateral Manager, the Borrower shall deliver the Monthly Report or Payment Date Report, as applicable, in accordance with Section 8.07 of the Credit Agreement; and
(viiviii) So long as the same Person serves as both the Collateral Administrator hereunder and as the Collateral Agent under this the Credit Agreement, provide such other information with respect to the Collateral as may be routinely maintained by in the possession of the Collateral Administrator in performing its ordinary or the Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement)Agent, or as may be required by this the Credit Agreement, as the Borrower or the Collateral Manager may reasonably request in writing from time to time.
(c) The Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in and information relating to the Monthly ReportsReports and the Payment Date Reports or as otherwise reasonably requested hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower (or Collateral Manager on its behalf) under this the Credit Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Original Asset Value, Aggregate Collateral Balance, Concentration Limitations Principal Balance and the Borrowing Base, as applicable) and any other information that may be reasonably required under this the Credit Agreement with respect to a Collateral Loan or Eligible Investment (including as to its designation as a Delayed Drawdown Collateral Loan, Defaulted Collateral Loan, DIP Collateral Loan, Noteless Loan, PIK Loan, Partial PIK Loan, Credit Risk Collateral Loan, Eligible Loan, Ineligible Loan or Collateral Loan, Equity Security, First Lien Obligation, Second Lien Obligation, Specified Eligible Investment, Structured Finance Obligation, Certificated Security or Uncertificated Security). Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of any item of Collateral under the Credit Agreement (it being understood that any such characterization or categorization shall be based exclusively upon the determination and notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and verify the contents of the aforesaid reports. To the extent any of the information in such reports, instructions or certificates conflicts with information, data or calculations in the records of the Collateral Manager, the Collateral Manager shall notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to assist the Collateral Administrator in reconciling such discrepancy. The Collateral Manager further agrees to send such reports, instructions, statements and certificates to the Borrower for execution. In addition, the Collateral Manager shall provide prompt notice to the Collateral Administrator upon the Collateral Manager’s obtaining knowledge of a Collateral Loan becoming a Defaulted Collateral Loan.
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which Manager acting on behalf of the Collateral Administrator shall be entitled to conclusively rely, Borrower as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-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 Administrator 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.
(e) The Collateral Administrator shall have no obligation to determine the Original Asset Value or the price of any Collateral in connection with any actions or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (Oxford Square Capital Corp.)
Powers and Duties of Collateral Administrator. (a) The Issuer hereby appoints U.S. Bank, and U.S. Bank shall hereby accepts its appointment, as the Issuer's agent to act as Collateral Administrator pursuant to the terms of this Agreement, until the earlier of U.S. Bank’s 's resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof or until the termination of this Agreement pursuant to Section 6 or 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Collateral Manager in connection with monitoring the Collateral solely by maintaining a database of certain characteristics with respect to of the Collateral on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Sections 2(b) through 2(f) below (in each case in such form and content, and in such detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer, the Valuation Agent and/or the Collateral Manager (in addition to certain information that may be received from the Trustee in respect of Eligible Investments and cash balances in Accounts, as provided herein), which reports, schedules and calculations and other data the Borrower Issuer, or the Valuation Agent or the Collateral Manager Manager, respectively on its behalf, and/or the Collateral Administrator is required to prepare and deliver or perform (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.0610.5 of the Indenture. U.S. Bank’s The Collateral Administrator's duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture, or of the Collateral Manager under this Agreementthe Collateral Management Agreement or the Indenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer or the Trustee under or pursuant to the Indenture or of the Collateral Manager under or pursuant to this the Indenture or the Collateral Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Portfolio Assets and Eligible Investments included in the Collateral that is Granted to the Trustee, as provided in this Agreement (the “Collateral Database”)) and provide access to the information contained therein to the Collateral Manager and the Issuer;
(ii) Update the Collateral Database promptly on a daily basis for changes changes, including for Xxxxx’x and S&P’s ratings changes, and to reflect the sale or other disposition of the Collateral Loans Portfolio Assets included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans Portfolio Assets and Eligible Investments from time to timetime and any amendment or change to loan amounts held as Collateral, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by the Issuer, the Valuation Agent or on behalf of the Borrower or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or that may be provided by the Trustee (based on information maintained upon notices received by U.S. Bank in its capacity as Collateral Agent the Trustee from the issuer, trustee or agent bank under this Agreementan Underlying Instrument, or other similar source);
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Accounts of Interest Proceeds Collections and Principal Proceeds and the outstanding balance therein, Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
Day (v) [Reserved];
(vi) [Reserved]; and
(vii) So long as which reports may be included in the same Person serves as both Collateral Administrator Daily Report referenced below), and as Collateral Agent under this Agreement, provide to the Trustee such other information as may be needed by the Trustee with respect to the Priority of Payments and Payment Dates;
(iv) Prepare, on behalf of the Issuer or the Collateral Manager on the Issuer's behalf, and arrange for delivery in accordance with the Indenture within the time frames stated therein, (A) beginning in April, 2020, a draft of the Payment Date Reports pursuant to the terms of Section 10.5(a) of the Indenture, on the basis of the information contained in the Collateral Database as may be routinely maintained by of the applicable Determination Date (and in that regard cooperate with the Collateral Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the penultimate paragraph of said Section 10.5(a) of the Indenture), and (B) beginning on the day after the Closing Date as and to the extent mutually agreed, and thereafter on a fully operational basis as promptly as the Collateral Administrator is able to do so with commercially reasonable efforts, each Daily Report required to be delivered under Section 10.5(b) of the Indenture, in performing its ordinary each case on the basis of the information contained in the Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), Database or as may be required provided by this Agreement, as the Borrower Trustee or the Collateral Manager may reasonably request from time to time.as of the close of business on the preceding Business Day; and
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the Payment Date Reports, Daily Reports, and other statements and calculations contained in the Monthly Reportsrequired hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise supply in a timely manner the Collateral Administrator of the results of fashion any determinations required or permitted to be made information maintained by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed need in order to perform its obligations complete the reports, statements and calculations required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (hereunder, including without limitation, the Collateral Manager’s determinations market value and categorization of Market Valuea Portfolio Asset, Aggregate Collateral Balanceto the extent required by the Indenture, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement the Indenture with respect to a Defaulted Obligation (including, without limitation, promptly notifying the Collateral Loan (including as to its designation as Administrator upon any Portfolio Asset becoming a Defaulted Loan, Ineligible Loan Obligation or Equity Security). Except with respect to the Daily Reports, the Collateral Manager shall review, verify and approve the contents of the aforesaid reports, statements and calculations and shall approve for prompt distribution in accordance with the Indenture. To the extent any of the information in such reports, statements and calculations conflicts with data or calculations in the records of the Collateral Manager, the Collateral Manager shall notify the Collateral Administrator of such discrepancy and use reasonable efforts to assist the Collateral Administrator in reconciling such discrepancy. The Collateral Manager shall cooperate with the Collateral Administrator by answering questions posed by the Collateral Administrator that are reasonably related to such reports, instructions, statements and certificates. The Collateral Administrator shall provide such items (other than the Daily Reports) to the Collateral Manager no later than three (3) Business Days prior to the due date as set forth above to enable such review by the Collateral Manager. At the instruction of the Collateral Manager, the Collateral Administrator shall attach to any reports such additional information that is timely provided by the Collateral Manager and independently prepared by, or on behalf of the Collateral Manager. The Collateral Manager shall be solely responsible for the content of any such additional information.
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which acting on behalf of the Collateral Administrator shall be entitled to conclusively relyIssuer, as to the course of action desired by it. If for any reason the Collateral Administrator does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, take action inconsistent with such instructions. The Collateral Administrator 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. The Collateral Administrator shall have no obligation to determine any market value or market price in connection with any actions or duties under this Agreement.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(f) Without limiting its reporting obligations under this Agreement, the Collateral Administrator shall have no obligation to determine (and the Collateral Manager will timely advise the Collateral Administrator)
(i) the type, classification or characterization of any Portfolio Asset or whether any such asset satisfies the criteria for the acquisition thereof as set forth in the Indenture, including without limitation and as applicable, as set forth in the definitions of Asset-backed Commercial Paper, Asset Eligibility Criteria, Bond, Bridge Security, Closing Date Participation, Cov-Lite Loan, Defaulted Obligation, Deferrable Security, Delayed-Draw Loan, DIP Loan, Eligible Participation Interest, Equity Security, Illiquid Loan, Liquid Loan, Loan, Margin Stock, Non-Performing Loan, Participation Interest, Performing Loan, Portfolio Asset, Priority Revolving Loan, Prohibited Industry Portfolio Asset, Revolving Loan, Second Lien Illiquid Loan, Second Lien Liquid Loan, Second Lien Loan, Senior Secured Illiquid Loan, Senior Secured Last Out Loan, Senior Secured Liquid Loan, Senior Secured Loan, Structured Finance Obligation, Synthetic Security or Zero Value Portfolio Asset, (ii) the domicile or other classification or characterization of an Obligor, (iii) the Advance Value or Advance Percentage of any Portfolio Asset, Eligible Investment or Cash (including whether any Portfolio Asset is subject to an asset-specific agreement in respect of any such percentage, (iv) the Market Value of any Portfolio Asset, Eligible Investment or Cash, (v) the related interest rate or spread (including any applicable Libor or other floating benchmark rate) of any Portfolio Asset, the related interest payment period or if interest may be capitalized, (vi) whether an asset pays less frequently than quarterly or is an unsecured Loan, or (vii) whether the conditions specified in the definition of Delivered have been complied with.
(g) In addition, the Collateral Administrator shall have no obligation to calculate or verify (i) the Borrowing Base (or any component thereof), (ii) the Borrowing Base Asset Criteria of any Portfolio Asset, (iii) the Borrowing Base Portfolio Criteria, or (iv) EBITDA or LTM EBITDA, and in each such case shall be entitled to rely on the calculation or determination thereof provided by the Valuation Agent.
Appears in 1 contract
Samples: Collateral Administration Agreement (BC Partners Lending Corp)
Powers and Duties of Collateral Administrator. (a) The Issuer hereby appoints U.S. Bank to act as Collateral Administrator and U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bank’s 's resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Asset Manager in connection with monitoring the Collateral Manager solely by maintaining a database of certain characteristics with respect to of the Collateral Pledged Obligations on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Asset Manager and certain other parties as specified in the Indenture, certain reports, calculations schedules and other data calculations, all as more particularly described in Section 2(b) below (in each case in such form and content, and in such greater detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer, the Asset Manager, certain other parties as specified in the Indenture and/or the obligors under an Underlying Instrument or agents for such obligors or other Third-Party Sources (as hereinafter defined) from time to time, which reports, schedules and calculations and other data the Borrower Issuer or the Collateral Manager Asset Manager, on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.0610.5 and Section 3.5(h) of the Indenture. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture or of the Asset Manager under the Asset Management Agreement or the Collateral Manager under this AgreementIndenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer, the Asset Manager or the Collateral Trustee under or pursuant to the Indenture, or of the Asset Manager under or pursuant to this the Asset Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Collateral Granted to the Trustee from time to time, including the Pledged Obligations and any Equity Securities credited to the Pledged Accounts from time to time and Eligible Investments in which amounts held in the Pledged Accounts may be invested from time to time, as provided in this Agreement (the “Collateral Database”)) and make available information contained therein to the Asset Manager and the Issuer;
(ii) Update the Collateral Database promptly on a periodic basis for changes changes, including for ratings changes, and to promptly reflect the prepayments, amortizations, purchases, sale or other disposition of the Collateral Loans Underlying Assets, Equity Securities and Eligible Investments included in the Collateral (the “Portfolio Collateral”) and ), the addition to the Collateral of additional Loans Underlying Assets, Equity Securities and Eligible Investments from time to timetime and any amendment or changes to loan amounts held as Collateral, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by the Issuer or on behalf of the Borrower or Collateral Asset Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, time or that may be received from Third Party Sources (as defined herein) or from the Trustee (based on information maintained upon notices received by U.S. Bank in its capacity as Collateral Agent under this Agreementthe Trustee from Third Party Sources);
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Pledged Accounts of Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Asset Manager daily reports reflecting such actions to the Collection Pledged Accounts as of the close of business on the preceding Business Day;
(iv) Prepare, on behalf of the Issuer, and arrange for delivery in accordance with the Indenture within the time frames stated therein, (A) the Monthly Report pursuant to the terms of Section 10.5(a) of the Indenture (and cooperate with the Asset Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the last paragraph of said Section 10.5(a) of the Indenture), (B) the Payment Date Report (together with Payment Date Instructions) pursuant to Section 10.5(b) of the Indenture and (C) the Rating Agency Effective Date Report pursuant to Section 3.5(h) of the Indenture, in each case, on the basis of the information contained in the Collateral Database or provided by the Trustee or Asset Manager, as of the applicable Determination Date;
(v) [Reserved]Reasonably cooperate with the Independent certified public accountants appointed by the Issuer in the preparation by such accountants of the reports required under Section 10.7 of the Indenture;
(vi) [Reserved]Reasonably cooperate with the Issuer and the Asset Manager in providing the Rating Agencies with such additional information as may be reasonably requested by the Rating Agencies and that can be provided without unreasonable burden or expense; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide Provide other such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator U.S. Bank in performing its ordinary Collateral Agent Trustee function pursuant to this Agreement the Indenture (so long as it shall also serve as Collateral Agent Trustee under this Agreementthe Indenture), or as may be required by this Agreementthe Indenture, as the Borrower Issuer or Collateral Asset Manager may reasonably request from time to timetime may be provided without unreasonable burden or expense.
(viii) At the request and direction of the Asset Manager, and pursuant to Section 7.17 of the Indenture, provide to the Trustee the information in its possession which the Issuer (or the Asset Manager on behalf of the Issuer), has determined to be Rule 144A Information.
(ix) Pursuant to its appointment as Calculation Agent (in such capacity, the “Calculation Agent”) under the Indenture, calculate the Benchmark applicable to each Class of Floating Rate Notes during each Interest Accrual Period and the Notes Interest Amount payable on each Payment Date in respect of such Class of Floating Rate Notes and the related Interest Accrual Period, in each case in accordance with the provisions of the Indenture. In its role as Calculation Agent hereunder and under the Indenture, the Calculation Agent shall have all of the benefits, rights, protections, immunities and indemnities of the Collateral Administrator under this Agreement.
(c) The After the Effective Date, upon the Collateral Administrator’s receipt of a written request of the Asset Manager shall cooperate with on any Business Day (provided such request is received by 12:00 Noon (Boston, Massachusetts time) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Administrator in connection with shall perform the matters described herein, including the confirmation by the Collateral Administrator following functions: (A) as of the calculations contained in date the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Asset Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or commits on behalf of the Collateral Manager that Issuer to purchase substitute Underlying Assets to be included in the Collateral Administrator may from time to time reasonably request with respect as Underlying Assets and (B) as of the date of such request, for the purpose of evaluating the inclusion of proposed substitute Underlying Assets, perform a pro forma calculation of the tests and other requirements constituting the Portfolio Criteria set forth in Section 12.2(c) of the Indenture, in each case, based upon information contained in the Collateral Database and information furnished by the Issuer or the Asset Manager as to the Collateral proposed substitute Underlying Assets, compare the results thereof against the applicable requirements set forth in said Section 12.2 and reasonably needed report the results thereof to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to Asset Manager in a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security)mutually agreed format.
(d) IfIn addition, in performing its duties under this Agreementon any Measurement Date, the Collateral Administrator shall determine whether the Event of Default Par Ratio is required equal to decide between alternative courses or greater than 102.5% on such Measurement Date.
(e) Upon the written request of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with Asset Manager on any Benchmark Replacement or any calculations required to be performed by Business Day after the Collateral Administrator’s receipt of such request and notification from the Asset Manager of its intent to sell, in accordance with Section 12.1(a) of the Indenture, an Underlying Asset, the Collateral Administrator may request written instructions (orshall calculate, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or after the Collateral ManagerAdministrator's receipt of such request (provided such request is received by no later than 12:00 Noon (Boston, upon which Massachusetts time) on such date (otherwise such request will be deemed made on the Collateral Administrator next succeeding Business Day) whether (i) for sales of Credit Improved Obligations if the Disposition Proceeds from such sale are at least equal to the Investment Criteria Adjusted Balance of such Credit Improved Obligation or after giving effect to such sale, the sum of Aggregate Principal Amount of all Underlying Assets, plus all Eligible Investments representing Principal Proceeds will be greater than the Reinvestment Target Par Balance and (ii) for sales of Underlying Assets (other than Defaulted Obligation, a Credit Risk Obligation, a Credit Improved Obligation, an Equity Security any other asset received by the Issuer in a workout, restructuring or similar transaction), (A) the Aggregate Principal Amount of all such sales following the Closing Date through the calendar year ending in 2024 does not exceed 30% of the Effective Date Target Par Amount and thereafter, for all future calendar years, the Aggregate Principal Amount of all such sales does not exceed 30% of the sum of Aggregate Principal Amount of all Underlying Assets, plus all Eligible Investments representing Principal Proceeds (determined as of the first day of such calendar year) and (B) either at any time (1) the Disposition Proceeds from such sale are at least equal to the Investment Criteria Adjusted Balance of such Underlying Asset to be sold or (2) after giving effect to such sale, the Aggregate Principal Amount of all Underlying Assets (with Defaulted Obligations held for less than three years carried at their Current Market Value) plus all Eligible Investments representing Principal Proceeds will be greater than the Reinvestment Target Par Balance. For purposes of determining the percentage of Underlying Assets sold during any such period, the amount of any Underlying Assets sold shall be entitled to conclusively rely, as reduced to the course extent of action desired by it. If any purchases of Underlying Assets of the Collateral Administrator does not receive same obligor (which are pari passu or senior to such instructions sold Underlying Asset) occurring within two 20 Business Days after it has requested them, of such sale (determined based upon the Collateral Administrator may, but shall be under no duty to, take date of any relevant trade confirmation or refrain from taking commitment letter) so long as any such courses Underlying Asset was sold with the intention of actionpurchasing an Underlying Asset of the same obligor (which would be pari passu or senior to such sold Underlying Asset). The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except report its determinations to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator shall be entitled to rely on the advice of legal counsel and independent accountants Asset Manager in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advicea mutually agreed format.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (Ares Capital Corp)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall The Borrower hereby appoints BNYM as, and BNYM hereby accepts the appointment to act as as, the Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bankthe earlier to occur of (i) BNYM’s resignation or removal as the Collateral Administrator pursuant to Section 15.04 7 hereof and (ii) the termination of this Agreement pursuant to Section 6 hereof. In such capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by in connection with maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, basis as provided herein and in providing to the Borrower and the Collateral Manager certain reports, schedules and calculations, all as more particularly described in Section 2(b) below (in each case, such reports, schedules and calculations shall be prepared in such form and other data (content, and in such greater detail, as may be mutually agreed upon by the parties hereto), which reports, calculations hereto from time to time and other as may be required by the Credit Agreement) based upon information and data received from the Borrower or the Collateral Manager on its behalf, and/or the Collateral Administrator is Manager, as required to prepare be prepared and deliver delivered (or which are necessary to be performed prepared and delivered in order that certain reports other reports, schedules and calculations can be performed as requiredprepared and delivered) under Section 8.06Article VIII of the Credit Agreement. U.S. BankBNYM’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under this Agreementthe Credit Agreement or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreementthe Credit Agreement or any other Facility Document.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 thirty (30) days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”);
(ii) Update the Collateral Database promptly and on an ongoing basis for changes, including for ratings changes as provided by the Collateral Manager, and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Collateral Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Obligors from time to time, or based on information maintained by U.S. Bank BNYM in its capacity as Collateral Agent under this the Credit Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Administrator and the Collateral Manager shall reasonably requestagree, including by way of reasonable electronic access (by access to the Collateral Administrator’s internet website) to the reports generated by the Collateral Administrator pursuant to this Agreement;
(iv) Track the receipt and daily allocation of cash to the Collection Account (and any subaccount thereto) with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Borrower and the Collateral Manager daily reports reflecting such actions to the Collection Covered Accounts as of the close of business on the preceding Business Day;
(v) [Reserved];.
(vi) [Reserved]Reasonably cooperate with the Independent Accountants appointed by the Borrower in the preparation by such accountants of the reports required under Section 8.09 of the Credit Agreement;
(vii) Not later than three (3) Business Days prior to the day on which each Monthly Report or Payment Date Report is required to be provided by the Borrower pursuant to Section 8.07 of the Credit Agreement, the Collateral Administrator shall prepare the relevant report using the information contained in the Collateral Database and, subject to the Collateral Administrator’s receipt from the Collateral Manager of information with respect to the Collateral that is required for the preparation of the Monthly Report or Payment Date Report, provide the results of such calculations to the Collateral Manager so that the Collateral Manager may confirm such results. Upon approval by the Collateral Manager, the Collateral Administrator shall deliver the Monthly Report or Payment Date Report, as applicable, in accordance with Section 8.07 of the Credit Agreement; and
(viiviii) So long as the same Person serves as both the Collateral Administrator hereunder and as the Collateral Agent under this the Credit Agreement, provide such other information with respect to the Collateral as may be routinely maintained by in the possession of the Collateral Administrator in performing its ordinary or the Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement)Agent, or as may be required by this the Credit Agreement, as the Borrower or the Collateral Manager may reasonably request in writing from time to time.
(c) The Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in and information relating to the Monthly ReportsReports and the Payment Date Reports or as otherwise reasonably requested hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower (or Collateral Manager on its behalf) under this the Credit Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Principal Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this the Credit Agreement with respect to a Collateral Loan (including as to its designation as a Covenant Lite Loan, Revolving Collateral Loan, Delayed Drawdown Collateral Loan, Defaulted Collateral Loan, DIP Collateral Loan, Noteless Loan, PIK Loan, Partial PIK Loan, Credit Risk Collateral Loan, CCC Collateral Loan, Eligible Loan, Ineligible Loan or Collateral Loan, Equity Security, First Lien Obligation, Second Lien Obligation, Floor Obligation, Specified Eligible Investment, Structured Finance Obligation, Certificated Security or Uncertificated Security). Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of any item of Collateral under the Credit Agreement (it being understood that any such characterization or categorization shall be based exclusively upon the determination and notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and verify the contents of the aforesaid reports. To the extent any of the information in such reports, instructions or certificates conflicts with information, data or calculations in the records of the Collateral Manager, the Collateral Manager shall notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to assist the Collateral Administrator in reconciling such discrepancy. The Collateral Manager further agrees to send such reports, instructions, statements and certificates to the Borrower for execution. In addition, the Collateral Manager shall provide prompt notice to the Collateral Administrator upon the Collateral Manager’s obtaining knowledge of a Collateral Loan becoming a Defaulted Collateral Loan.
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which Manager acting on behalf of the Collateral Administrator shall be entitled to conclusively rely, Borrower as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-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 Administrator 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.
(e) The Collateral Administrator shall have no obligation to determine the Market Value or the price of any Collateral in connection with any actions or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (TICC Capital Corp.)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bank’s resignation or removal as Collateral Administrator pursuant to Section 15.04 hereof7. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Servicer in connection with monitoring the Collateral Manager solely by maintaining a database of certain characteristics with respect to of the Collateral Loans and Permitted Investments on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Manager Servicer certain reports, calculations schedules and other data calculations, all as more particularly described in Section 2(b) (in each case in such form and content, and in such greater detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Sale and Servicing Agreement), based upon information and data received from the Issuer and/or the Servicer, which reports, schedules and calculations and other data the Borrower Issuer or the Collateral Manager Servicer, on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.06Article IX of the Sale and Servicing Agreement. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer or of the Collateral Manager Servicer under this the Sale and Servicing Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer, or the Collateral Manager Trustee under or pursuant to this the Indenture or of the Issuer or the Servicer under or pursuant to the Sale and Servicing Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Collateral that is part of the trust estate granted to the Trustee from time to time, as provided in this Agreement (the “Collateral Database”);
(ii) Update the Collateral Database promptly on a periodic basis for changes changes, including for ratings changes; and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral trust estate of additional Loans Collateral from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by the Issuer or on behalf of the Borrower or Collateral Manager Servicer as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Transaction Accounts of Interest Proceeds Collections and Principal Proceeds and the outstanding balance therein, Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer daily reports reflecting such actions to the Collection Transaction Accounts as of the close of business on the preceding Business Day;
(iv) Prepare, on behalf of the Issuer, and arrange for delivery in accordance with the Sale and Servicing Agreement within the time frames stated therein, the Quarterly Report pursuant to the terms of Section 9.01 of the Sale and Servicing Agreement, on the basis of the information contained in the Collateral Database as of the applicable Determination Date and such other information as may be provided by the Servicer;
(v) [Reserved]Reasonably cooperate with the Independent Accountants appointed by the Issuer in the preparation by such accountants of the reports required under Sections 9.04 of the Sale and Servicing Agreement;
(vi) [Reserved]Reasonably cooperate with the Issuer and the Servicer in providing the Rating Agencies with such information as is contained in the Collateral Database, or routinely maintained by it in performing its Trustee function, and required to be delivered under Section 9.03 of the Sale and Servicing Agreement and such additional information as may be reasonably requested by the Rating Agencies and that can be provided without unreasonable burden or expense; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide Provide other such other information with respect to the Collateral granted to the Trustee and not released from the trust estate as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent Trustee function pursuant to this Agreement the Indenture (so long as it the Collateral Administrator shall also serve as Collateral Agent Trustee under this the Indenture or the Sale and Servicing Agreement), or as may be required by this the Indenture or the Sale and Servicing Agreement, as the Borrower Issuer or Collateral Manager the Servicer may reasonably request from time to time.
(c) After the Effective Date, upon the written request of the Servicer on any Business Day and within three hours after the Collateral Administrator’s receipt of such request (provided such request is received by 1:00 pm (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Administrator shall perform the following functions: (A) as of the date the Servicer commits on behalf of the Issuer to purchase Additional Loans or Substitute Loans to be included in the Collateral and (B) as of the date of such request, for the purpose of evaluating the inclusion of proposed Substitute Loans or Additional Loans, perform a pro forma calculation of the tests and other requirements constituting the Portfolio Criteria set forth in Section 2.06(c)(ii) of the Sale and Servicing Agreement, in the case of Additional Loans, Section 11.01(g)(iii) of the Sale and Servicing Agreement, in the case of Substitute Loans, in each case, based upon information contained in the Collateral Database and information furnished by the Issuer or the Servicer as to the proposed Substitute Loans or Additional Loans, compare the results thereof against the applicable requirements set forth in said Sections 2.06(c)(ii) and 11.01(g)(iii) and report the results thereof to the Servicer in a mutually agreed format.
(d) The Collateral Manager Servicer shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the calculations contained in the Monthly Quarterly Reports. Without limiting the generality of the foregoing, the Collateral Manager Servicer shall advise supply in a timely manner the Collateral Administrator of the results of fashion any determinations required or permitted to be made information maintained by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed need to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (hereunder, including without limitation, the Collateral Manager’s determinations Fair Market Value or Market Value of Market Value, Aggregate Collateral Balance, Concentration Limitations a Loan to the extent required by the Sale and the Borrowing Base, as applicable) Servicing Agreement and any other information that may be reasonably required under this the Sale and Servicing Agreement with respect to the Collateral, including, without limitation, a Collateral Charged-Off Loan (including as to its designation as notifying the Collateral Administrator promptly upon a Defaulted Loan becoming a Charged-Off Loan), Delinquent Loan, Ineligible Swapped Floating Rate Loan or Equity Security)and related Asset Specific Swap, Permitted PIK Loan, Credit Impaired Loan and Current Pay Loan. The Servicer shall review and verify the contents of the aforesaid reports, instructions, statements and certificates and shall send such reports, instructions, statements and certificates to the Issuer for execution.
(de) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or Servicer, acting on behalf of the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively relyIssuer, as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day day period except to the extent it has already taken, or committed itself to take, take action inconsistent with such instructions. The Collateral Administrator 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.
(ef) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (Ares Capital Corp)
Powers and Duties of Collateral Administrator. (a) The Borrower hereby appoints U.S. Bank shall as, and U.S. Bank hereby accepts the appointment to act as as, the Collateral Administrator pursuant to the terms of this Agreement, until the earlier to occur of (i) U.S. Bank’s resignation or removal as the Collateral Administrator pursuant to Section 15.04 7 hereof and (ii) the termination of this Agreement pursuant to Section 6 hereof. In such capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by in connection with maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, basis as provided herein and in providing to the Borrower and the Collateral Manager certain reports, schedules and calculations, all as more particularly described in Section 2(b) below (in each case, such reports, schedules and calculations shall be prepared in such form and other data (content, and in such greater detail, as may be mutually agreed upon by the parties hereto), which reports, calculations hereto from time to time and other as may be required by the Credit Agreement) based upon information and data received from the Borrower or the Collateral Manager on its behalf, and/or the Collateral Administrator is Manager, as required to prepare be prepared and deliver delivered (or which are necessary to be performed prepared and delivered in order that certain reports other reports, schedules and calculations can be performed as requiredprepared and delivered) under Section 8.06Article VIII of the Credit Agreement. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under this Agreementthe Credit Agreement or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreementthe Credit Agreement or any other Facility Document.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 thirty (30) days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”);
(ii) Update the Collateral Database promptly and on an ongoing basis for changes, including for ratings changes as provided by the Collateral Manager, and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Collateral Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Obligors from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this the Credit Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Administrator and the Collateral Manager shall reasonably requestagree, including by way of reasonable electronic access (by access to the Collateral Administrator’s internet website) to the reports generated by the Collateral Administrator pursuant to this Agreement;
(iv) Track the receipt and daily allocation of cash to the Collection Account (and any subaccount thereto) with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Borrower and the Collateral Manager daily reports reflecting such actions to the Collection Covered Accounts as of the close of business on the preceding Business Day;
(v) [Reserved];.
(vi) [Reserved]Reasonably cooperate with the Independent Accountants appointed by the Borrower in the preparation by such accountants of the reports required under Section 8.09 of the Credit Agreement;
(vii) Not later than three (3) Business Days prior to the day on which each Monthly Report or Payment Date Report is required to be provided by the Borrower pursuant to Section 8.07 of the Credit Agreement, the Collateral Administrator shall prepare the relevant report using the information contained in the Collateral Database and provide the results of such calculations to the Collateral Manager so that the Collateral Manager may confirm such results. Upon approval by the Collateral Manager, the Collateral Administrator shall deliver the Monthly Report or Payment Date Report, as applicable, in accordance with Section 8.07 of the Credit Agreement; and
(viiviii) So long as the same Person serves as both the Collateral Administrator hereunder and as the Collateral Agent under this the Credit Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary function as the Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this the Credit Agreement), or as may be required by this the Credit Agreement, as the Borrower or the Collateral Manager may reasonably request from time to time.
(c) The Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in and information relating to the Monthly ReportsReports and the Payment Date Reports or as otherwise reasonably requested hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower (or Collateral Manager on its behalf) under this the Credit Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Principal Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this the Credit Agreement with respect to a Collateral Loan (including as to its designation as a Covenant Lite Loan, Defaulted Collateral Loan, DIP Collateral Loan, Noteless Loan, PIK Loan, Partial PIK Loan, Unquoted / Single-Bid Collateral Loan, Credit Risk Collateral Loan, Ineligible Loan or Collateral Loan, Equity Security, Standard Collateral Loan, First Lien Obligation, Floor Obligation, Specified Eligible Investment, Structured Finance Obligation or Uncertificated Security). Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of any item of Collateral under the Credit Agreement (it being understood that any such characterization or categorization shall be based exclusively upon the determination and notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and verify the contents of the aforesaid reports. To the extent any of the information in such reports conflicts with information, data or calculations in the records of the Collateral Manager, the Collateral Manager shall notify the Collateral Administrator of such discrepancy and use reasonable efforts to assist the Collateral Administrator in reconciling such discrepancy. The Collateral Manager further agrees to send such reports, instructions, statements and certificates to the Borrower for execution. In addition, the Collateral Manager shall provide prompt notice to the Collateral Administrator upon the Collateral Manager’s obtaining knowledge of a Collateral Loan becoming a Defaulted Collateral Loan.
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which Manager acting on behalf of the Collateral Administrator shall be entitled to conclusively rely, Borrower as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-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 Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (Business Development Corp of America)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall The Issuer hereby appoints State Street, and State Street hereby accepts its appointment, as the Issuer’s agent to act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. BankState Street’s resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Collateral Manager in connection with monitoring the Collateral solely by maintaining a database of certain characteristics with respect to of the Collateral on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Sections 2(b) through 2(e) below (in each case in such form and content, and in such detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer and/or the Collateral Manager (in addition to certain information that may be received from the Trustee in respect of Eligible Investments and cash balances in Accounts, as provided herein), which reports, schedules and calculations and other data the Borrower Issuer or the Collateral Manager Manager, on its behalf, and/or the Collateral Administrator is required to prepare and deliver or perform (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.0610.5 of the Indenture. U.S. BankState Street’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture, or of the Collateral Manager under this Agreementthe Collateral Management Agreement or the Indenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer or the Trustee under or pursuant to the Indenture or of the Collateral Manager under or pursuant to this the Indenture or the Collateral Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Portfolio Assets and Eligible Investments included in the Collateral that is Granted to the Trustee, as provided in this Agreement (the “Collateral Database”)) and provide access to the information contained therein to the Collateral Manager and the Issuer;
(ii) Update the Collateral Database promptly on a daily basis for changes changes, including for Moody’s and Standard & Poor’s ratings changes, and to promptly reflect the sale or other disposition of the Collateral Loans Portfolio Assets included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans Portfolio Assets and Eligible Investments from time to timetime and any amendment or change to loan amounts held as Collateral, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower Issuer or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or that may be provided by the Trustee (based on information maintained upon notices received by U.S. Bank in its capacity as Collateral Agent the Trustee from the issuer, trustee or agent bank under this Agreementan Underlying Instrument, or other similar source);
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Accounts of Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day, and provide to the Trustee such other information as may be needed by the Trustee with respect to the Priority of Payments and Payment Dates;
(iv) Prepare, on behalf of the Issuer or the Collateral Manager on the Issuer’s behalf, and arrange for delivery in accordance with the Indenture within the time frames stated therein, (A) beginning in June 2013, the Payment Date Reports pursuant to the terms of Section 10.5(a) of the Indenture, on the basis of the information contained in the Collateral Database as of the applicable Determination Date (and in that regard cooperate with the Collateral Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the last paragraph of said Section 10.5(a) of the Indenture), and (B) beginning on the day after Closing Date as and to the extent mutually agreed, and thereafter on a fully operational basis as promptly as the Collateral Administrator is able to do so with commercially reasonable efforts, the Daily Reports pursuant to Section 10.5(c) of the Indenture, on the basis of the information contained in the Collateral Database or provided by the Trustee or the Collateral Manager as of the close of business on the preceding Business Day;
(v) [Reservedreserved];
(vi) [Reserved]; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as the Borrower or Collateral Manager may reasonably request from time to time.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administrator, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement and, to the extent applicable, the Credit Agreement, until U.S. Bank’s resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Company and the Collateral Manager by in connection with maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, and in providing to the Borrower Company and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Section 2(b) below (in each case in such form and content, and in such greater detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Credit Agreement), based upon information and data received from the Company and/or the Collateral Manager or from Third Party Information Providers (as defined below), which reports, schedules and calculations and other data the Borrower Company or the Collateral Manager on its behalf, and/or the or Collateral Administrator on the Company’s behalf is required to prepare and deliver (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.06Sections 8.9 and 9.1(c) of the Credit Agreement. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement and the Credit Agreement. By entering into, or performing its duties under, this Agreement and the Credit Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Company or Collateral Manager under the Credit Agreement, or of the Collateral Manager under this the Collateral Management Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Company under or pursuant to the Credit Agreement or of the Collateral Manager under or pursuant to the Collateral Management Agreement. The Collateral Administrator shall have no obligation to determine Market Value or price in connection with any actions or duties under this Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 days after the Closing Date, create a collateral database containing such specifications and information with respect to the Collateral Obligations and Eligible Investments as the Collateral Manager and Collateral Administrator shall reasonably agree (the “Collateral Database”);
(ii) Assist the Collateral Manager in reconciling any variance between the Collateral Database and the Collateral Manager’s version of the same and the test results (whether required under the Credit Agreement or otherwise) and, in connection with the ongoing management of the Collateral portfolio by the Collateral Manager, including the evaluation of proposed trades, use reasonable efforts to resolve promptly any variance or other discrepancy between the two models;
(iii) Update the Collateral Database promptly daily for changes, including for ratings changes and to reflect the sale or other disposition of the Collateral Loans Obligations included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans Collateral Obligations from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower Company or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the obligors underlying obligors the Collateral Obligations (“Third Party Information Providers”) from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this the Credit Agreement;
(iiiiv) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the BorrowerCompany, as the Collateral Administrator and the Collateral Manager shall reasonably requestagree, including by way of reasonable electronic access (by access to the Collateral Administrator’s internet website) to the reports generated by the Collateral Administrator pursuant to this Agreement;
(ivv) Track the receipt and daily allocation to the Interest Collection Account or Principal Collection Account with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, by 11:00 a.m. (New York time) on each Business Day, provide to the Collateral Manager daily reports the Daily Report reflecting such actions to the Collection Accounts accounts as of the close of business on the preceding Business Day;
(v) [Reserved]Day in accordance with the terms of Section 8.9 of the Credit Agreement;
(vi) Prepare, on behalf of the Company, and arrange for delivery in accordance with the Credit Agreement within the time frames stated therein, the Collateral Report and Payment Date Report pursuant to the terms of Section 8.9 of the Credit Agreement (and cooperate with the Collateral Manager, on behalf of the Company, in connection with the comparison of information and discrepancies, if any, as contemplated by the provisions of said Section 8.9 of the Credit Agreement), on the basis of the information contained in the Collateral Database as of the applicable determination date for each such report, or to the extent not contained in the Collateral Database, provided by the Collateral Manager, the Lenders, or otherwise maintained by U.S. Bank, in its capacity as Collateral Agent;
(vii) After the date that is 30 days after the Closing Date (or such earlier date as shall be agreed to by the Collateral Administrator), upon the written request of the Company or Collateral Manager on its behalf, on any Business Day and within three hours after the Collateral Administrator’s receipt of such request (provided such request is received by 12:00 Noon (New York time)) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Administrator shall perform the following functions: (A) as of the date the Collateral Manager commits on behalf of the Company to purchase or originate a Collateral Obligations to be included in the Collateral and (B) as of the date of such request, for the purpose of evaluating the inclusion of a proposed Collateral Obligations in the Collateral, perform a pro forma calculation of the tests and other requirements constituting the Eligibility Criteria, in each case, based upon information contained in the Collateral Database and information furnished by the Collateral Manager or Company as to the proposed Collateral Obligations, compare the results thereof against the applicable requirements set forth in the definition of Eligibility Criteria and report the results thereof to the Company and Collateral Manager in a mutually agreed format. For the avoidance of doubt, the foregoing requests may be made in respect of any number of hypothetical trades, and no such request shall obligate the Company or Collateral Manager to make the actual trade or commitment;
(viii) Upon the Collateral Administrator’s receipt on any Business Day of written notification from the Company or the Collateral Manager on its behalf of its intent to sell, in accordance with Section 10.1(a) of the Credit Agreement, a Collateral Obligations (other than a Defaulted Loan, a Credit Risk Obligation, a Credit Improved Loan or an Equity Security), the Collateral Administrator shall determine and report to the Company and Collateral Manager whether, after giving effect to such sale, the Aggregate Principal Balance of all such Collateral Obligations sold under Section 10.1(a) during the preceding period of twelve calendar months (or, for the first twelve calendar months after the Closing Date, during the period commencing on the Closing Date) does not exceed 20% of the Total Capitalization as of the first day of such twelve calendar month period (or as of the Closing Date, as the case may be);
(ix) Reasonably cooperate with the independent accountants appointed by the Company (or the Collateral Manager on its behalf) in the preparation by such accountants of the reports required under and as contemplated by Section 5.28 of the Credit Agreement;
(x) [Reservedreserved];
(xi) Reasonably cooperate with the Company and the Collateral Manager in providing the Facility Agent and Senior Lenders with such additional information as may be reasonably requested by them in accordance with the Credit Agreement and that can be provided without unreasonable burden or expense; and
(viixii) So long as the same Person serves as both Collateral Administrator hereunder and as Collateral Agent under this the Credit Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this the Credit Agreement), or as may be required by this the Credit Agreement, as the Borrower Company or Collateral Manager may reasonably request from time to time.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the calculations contained in the Monthly Collateral Reports and Payment Date Reports. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower Company (or Collateral Manager on its behalf) under this the Credit Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable formatto the extent not also maintained or readily available to the Collateral Administrator) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or under the Credit Agreement or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) or thereunder and any other information that may be reasonably required under this the Credit Agreement with respect to any item of Collateral. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of any item of Collateral under the Credit Agreement (it being understood that any such characterization or categorization shall be based exclusively upon the determination and notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and verify the contents of the aforesaid reports, instructions, statements and certificates and shall send such reports, instructions, statements and certificates to the Company for execution. In addition, the Collateral Manager shall provide prompt notice to the Collateral Administrator upon its becoming aware that a Collateral Loan (including as to its designation as Obligations has become a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower Company or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, Manager as to the course of action desired by it; provided that in the event of conflicting instructions, the instructions of the Collateral Manager shall prevail. If the Collateral Administrator does not receive such instructions within two five Business Days (or such earlier time as the Collateral Administrator is required to act (as identified in such request)) after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action; provided that the Collateral Administrator promptly notifies the Collateral Manager and the Company which course of action, if any, it has decided to take. The Collateral Administrator shall act in accordance with instructions received after such twofive-Business Day period (or such earlier period specified by the Collateral Administrator in its request) except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (AB Private Credit Investors Corp)
Powers and Duties of Collateral Administrator. (a) U.S. Bank Virtus Group, LP shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. BankVirtus Group, LP’s resignation or removal as Collateral Administrator pursuant to Section 15.04 hereof. In such capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, and in providing to the Borrower and the Collateral Manager (and, where applicable, the Borrower’s Independent Accountants) certain reports, calculations and other data (as may be mutually agreed upon by the parties hereto), based upon information and data received from the Borrower and/or Collateral Manager, which reports, calculations and other data the Borrower or the Collateral Manager on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports and calculations can be performed as required) under Section 8.06. U.S. BankVirtus Group, LP’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under this Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower or the Collateral Manager under or pursuant to this AgreementAgreement or any other Facility Document.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”);
(ii) Update the Collateral Database promptly for changes and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
(v) [Reserved];
(vi) [Reserved]; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as the Borrower or Collateral Manager may reasonably request from time to time.
(ca) The Collateral Manager and the Borrower shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in the Monthly ReportsReports or otherwise reasonably requested hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to a Collateral Loan (including as to its designation as a Defaulted Collateral Loan, Ineligible Loan Collateral Loan, Equity Security or Equity SecurityCredit Improved Loan).
(db) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, Manager as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two five Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such twofive-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(ec) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Main Street Capital CORP)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bank’s 's resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof or until termination of this Agreement pursuant to Section 6 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Collateral Manager in connection with monitoring the Collateral by maintaining a database of certain characteristics with respect to of the Collateral on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Section 2(b) below (in each case in such form and content, and in such greater detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer and/or the Collateral Manager, which reports, schedules and calculations and other data the Borrower Issuer, or the Collateral Manager on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.0610.6 and 7.18 of the Indenture. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture, or of the Collateral Manager under this Agreementthe Collateral Management Agreement or the Indenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer, the Collateral Manager or the Trustee under or pursuant to the Indenture or of the Collateral Manager under or pursuant to this the Collateral Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Collateral that is part of the trust estate Granted to the Trustee from time to time, comprised of the Collateral Obligations and Equity Securities credited to the Accounts from time to time and Eligible Investments in which amounts held in the Accounts may be invested from time to time, as provided in this Agreement (the “"Collateral Database”");
(ii) Update the Collateral Database promptly for changes changes, including for ratings changes, and to reflect the sale or other disposition of the Collateral Loans Obligations, Equity Securities and Eligible Investments included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral trust estate of additional Loans Collateral Obligations, Equity Securities and Eligible Investments from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower Issuer, Trustee, or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Accounts of Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
(iv) Prepare, on behalf of the Issuer, and arrange for delivery in accordance with the Indenture within the time frames stated therein, (A) the Monthly Report pursuant to the terms of Section 10.6(a) of the Indenture (and cooperate with the Collateral Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the last paragraph of said Section 10.6(a) of the Indenture) (B) the Distribution Report pursuant to Section 10.6(b) of the Indenture and (C) the Effective Date Report pursuant to Section 7.18(c) of the Indenture (and cooperate with the Collateral Manager and the Trustee in connection with the resolution of any discrepancy between the Effective Date Report and Effective Date Accountant’s Report;
(v) [Reserved]Reasonably cooperate with the Independent certified public accountants appointed by the Issuer in the preparation by such accountants of the reports required under Sections 7.18 and 10.8 of the Indenture;
(vi) [Reserved]; andReasonably cooperate with the Issuer and the Collateral Manager in providing the Rating Agencies with such additional information as may be reasonably requested by the Rating Agencies and that can be provided without unreasonable burden or expense;
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide Provide other such other information with respect to the Collateral Granted to the Trustee and not released from the trust estate as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent Trustee function pursuant to this Agreement the Indenture (so long as it shall also serve as Collateral Agent Trustee under this Agreementthe Indenture), or as may be required by this Agreementthe Indenture, as the Borrower Issuer or Collateral Manager may reasonably request from time to time; and
(viii) Following the Effective Date and in connection with the preparation of the Monthly Reports and upon the request of the Collateral Manager, run the computer model setting forth the S&P CDO Monitor provided to the Collateral Administrator by S&P or the Collateral Manager.
(c) After the Effective Date, so long as the Reinvestment Period remains in effect, upon and subject to the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Administrator's receipt of such request (provided such request is received by 12:00 Noon (Boston, Massachusetts time) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Administrator shall perform the following functions: (A) as of the date the Collateral Manager commits on behalf of the Issuer to purchase substitute Collateral Obligations to be included in the Collateral as Collateral Obligations and (B) as of the date of such request, for the purpose of evaluating the inclusion of proposed substitute Collateral Obligations, perform a pro forma calculation of the tests and other requirements constituting the Investment Criteria set forth in Section 12.2 of the Indenture, in each case, based upon information contained in the Collateral Database and information furnished by the Issuer or the Collateral Manager as to the proposed substitute Collateral Obligations, compare the results thereof against the applicable requirements set forth in said Section 12.2 and report the results thereof to the Collateral Manager in a mutually agreed format.
(d) After the Effective Date, so long as no Restricted Trading Period exists, upon the Collateral Administrator's receipt on any Business Day of written notification from the Collateral Manager of its intent to sell certain Collateral Obligations pursuant to Section 12.1(g) of the Indenture and requesting that the Collateral Administrator make the following determinations, the Collateral Administrator shall determine, within three hours after the Collateral Administrator's receipt of such request (provided such request is received by no later than 12:00 P.M. (Boston, Massachusetts time) on such date; and otherwise such request will be deemed to be made on the next succeeding Business Day) whether, for sales of Collateral Obligations to be sold pursuant to Section 12.1(g) of the Indenture, the Aggregate Principal Balance of such proposed sale together with all other Collateral Obligations sold pursuant to Section 12.1(g) of the Indenture during the twelve (12) month period immediately prior to such sale (or for the first twelve calendar months after the Closing Date), exceeds 20% of the Collateral Principal Amount as of the first day of such twelve (12) calendar month period (or as of the Closing Date, as the case may be) and report the results thereof to the Collateral Manager in a mutually agreed format.
(e) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the calculations contained in the Monthly Reports, the Distribution Reports, the Effective Date Report and the calculations set forth in Section 2 hereof. Without limiting the generality of the foregoing, the Collateral Manager shall advise supply in a timely manner the Collateral Administrator of the results of fashion any determinations required or permitted to be made information maintained by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed need to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (hereunder, including without limitation, the Market Value of a Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and Obligation to the Borrowing Base, as applicable) extent required by the Indenture and any other information that may be reasonably required under this Agreement the Indenture with respect to, or as to the designation of, a Collateral Loan Defaulted Obligation (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Agreement, notifying the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its dutiespromptly upon a Collateral Obligation becoming a Defaulted Obligation), including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral AdministratorCurrent Pay Obligation, the Collateral Administrator may request written instructions (orCredit Improved Obligation, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.Discount Obligation,
Appears in 1 contract
Samples: Collateral Administration Agreement (KCAP Financial, Inc.)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bank’s resignation or removal as Collateral Administrator pursuant to Section 15.04 hereof. In such capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, and in providing to the Borrower and the Collateral Manager certain reports, calculations and other data (as may be mutually agreed upon by the parties hereto), which reports, calculations and other data the Borrower or the Collateral Manager on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports and calculations can be performed as required) under Section 8.06. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under this Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement.the
(b) The Collateral Administrator shall perform the following general functions from time to time:
: (i) Promptly, and in any event within 30 days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”);
; (ii) Update the Collateral Database promptly for changes and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this Agreement;
; (iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
; (iv) Track the receipt and daily allocation to the Collection Account with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
; (v) [Reserved];
(vi) [Reserved]; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as the Borrower or Collateral Manager may reasonably request from time to time.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administrator, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as the Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bank’s resignation or removal as the Collateral Administrator pursuant to Section 15.04 hereof7 hereof or pursuant to the terms of the Loan Agreement. In such capacity, the Collateral Administrator shall assist the Borrower Company and the Collateral Investment Manager by in connection with maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, basis and in providing to the Borrower Company and the Collateral Investment Manager certain reports, schedules and calculations, all as more particularly described in Section 2(b) below (in each case, such reports, schedules and calculations shall be prepared in such form and other data (content, and in such greater detail, as may be mutually agreed upon by the parties hereto)hereto from time to time and as may be required by the Loan Agreement) based upon information and data received from the Company, which reportsthe Administrative Agent, calculations and other data the Borrower or the Collateral Manager on its behalf, Account Bank and/or the Collateral Administrator is Investment Manager, as required to prepare be prepared and deliver delivered (or which are necessary to be performed prepared and delivered in order that certain reports other reports, schedules and calculations can be performed as requiredprepared and delivered) under Section 8.068.03 of the Loan Agreement. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Company or the Collateral Investment Manager under this the Loan Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Company or the Collateral Investment Manager under or pursuant to this the Loan Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 Within fifteen (15) days after the Closing Datedate of the Loan Agreement, create a collateral database with respect to the Collateral (the “Collateral Database”);
(ii) Update the Collateral Database promptly and on an ongoing basis for changes, including for ratings changes as provided by the Investment Manager, and to reflect the sale or other disposition of the Collateral Loans Portfolio Investments included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans assets constituting Collateral from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower Company, the Investment Manager or Collateral Manager the Account Bank as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this the Loan Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Investment Manager on behalf of the BorrowerCompany and the Administrative Agent, as the Collateral Manager Administrator, the Administrative Agent and the Investment Manager, as applicable, shall reasonably requestagree, including by way of reasonable electronic access (by access to the Collateral Administrator’s internet website) to the reports generated by the Collateral Administrator pursuant to this Agreement;
(iv) Track the receipt and daily allocation to the USD Interest Collection Account, Euro Interest Collection Account, GBP Interest Collection Account, USD Principal Collection Account, Euro Principal Collection Account and GBP Principal Collection Account, as applicable, with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
(v) [Reserved]Reasonably cooperate with the Investment Manager in the Investment Manager’s review of the Position Reports and the Cash Flow Reports;
(vi) [Reserved]; andNot later than the date specified therefor in the Loan Agreement, the Collateral Administrator shall prepare each Position Report and Cash Flow Report by compiling and preparing such report using the information contained in the Collateral Database and the information set forth in clause (iv) above and provide the results of such calculations to the Administrative Agent and the Investment Manager so that the Investment Manager may confirm such results;
(vii) So long as the same Person serves as both the Collateral Administrator hereunder and as the Collateral Agent under this the Loan Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary function as the Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this the Loan Agreement), or as may be required by this the Loan Agreement, as the Borrower Company, the Administrative Agent or Collateral the Investment Manager may reasonably request from time to time.; and
(cviii) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator Upon written request of the calculations contained in the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Investment Manager shall advise in a timely manner the Collateral Administrator of the results of on any determinations required or permitted to Business Day (provided such request is accompanied by such information as may be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations hereunder or required necessary to permit the Collateral Administrator to perform its obligations hereunder make the calculations referred to below and is received by 12:00 Noon (including New York City time) on such date; otherwise such request will be deemed made on the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Securitynext succeeding Business Day).
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses shall perform the following functions: (i) perform a pro forma calculation of action or is otherwise uncertain as the tests and other requirements comprising the Concentration Limitations set forth in Schedule 4 to the performance of its duties, including alternative methodologies Loan Agreement (in connection with any Benchmark Replacement or any calculations required to be performed each case based upon information then contained in the Collateral Database and the information furnished by the Collateral Administrator, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower Company or the Collateral ManagerInvestment Manager no later than the time of such request), upon which compare the Collateral Administrator shall be entitled to conclusively rely, as to the course of action desired by it. If the Collateral Administrator does not receive results thereof against such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.requirements set forth in
Appears in 1 contract
Samples: Collateral Administration Agreement (Carey Credit Income Fund 2016 T)
Powers and Duties of Collateral Administrator. (a) The Issuer hereby appoints U.S. Bank to act as Collateral Administrator and U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bank’s 's resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Asset Manager in connection with monitoring the Collateral Manager solely by maintaining a database of certain characteristics with respect to of the Collateral Pledged Obligations on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Asset Manager and certain other parties as specified in the Indenture, certain reports, calculations schedules and other data calculations, all as more particularly described in Section 2(b) below (in each case in such form and content, and in such greater detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer, the Asset Manager, certain other parties as specified in the Indenture and/or the obligors under an Underlying Instrument or agents for such obligors or other Third-Party Sources (as hereinafter defined) from time to time, which reports, schedules and calculations and other data the Borrower Issuer or the Collateral Manager Asset Manager, on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.0610.5 and Section 3.5(h) of the Indenture. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture or of the Asset Manager under the Asset Management Agreement or the Collateral Manager under this AgreementIndenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer, the Asset Manager or the Collateral Trustee under or pursuant to the Indenture, or of the Asset Manager under or pursuant to this the Asset Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Collateral Granted to the Collateral Trustee from time to time, including the Pledged Obligations and any Equity Securities credited to the Pledged Accounts from time to time and Eligible Investments in which amounts held in the Pledged Accounts may be invested from time to time, as provided in this Agreement (the “Collateral Database”)) and make available information contained therein to the Asset Manager and the Issuer;
(ii) Update the Collateral Database promptly on a periodic basis for changes changes, including for ratings changes, and to promptly reflect the prepayments, amortizations, purchases, sale or other disposition of the Collateral Loans Underlying Assets, Equity Securities and Eligible Investments included in the Collateral (the “Portfolio Collateral”) and ), the addition to the Collateral of additional Loans Underlying Assets, Equity Securities and Eligible Investments from time to timetime and any amendment or changes to loan amounts held as Collateral, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by the Issuer or on behalf of the Borrower or Collateral Asset Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, time or that may be received from Third Party Sources (as defined herein) or from the Collateral Trustee (based on information maintained upon notices received by U.S. Bank in its capacity as the Collateral Agent under this AgreementTrustee from Third Party Sources);
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Pledged Accounts of Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Asset Manager daily reports reflecting such actions to the Collection Pledged Accounts as of the close of business on the preceding Business Day;
(iv) Prepare, on behalf of the Issuer, and arrange for delivery in accordance with the Indenture within the time frames stated therein, (A) the Monthly Report pursuant to the terms of Section 10.5(a) of the Indenture (and cooperate with the Asset Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the last paragraph of said Section 10.5(a) of the Indenture), (B) the Payment Date Report (together with Payment Date Instructions) pursuant to Section 10.5(b) of the Indenture and (C) the Rating Agency Effective Date Report pursuant to Section 3.5(h) of the Indenture, in each case, on the basis of the information contained in the Collateral Database or provided by the Collateral Trustee or Asset Manager, as of the applicable Determination Date;
(v) [Reserved]Reasonably cooperate with the Independent certified public accountants appointed by the Issuer in the preparation by such accountants of the reports required under Section 10.7 of the Indenture;
(vi) [Reserved]Reasonably cooperate with the Issuer and the Asset Manager in providing the Rating Agency with such additional information as may be reasonably requested by the Rating Agency and that can be provided without unreasonable burden or expense; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide Provide other such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator U.S. Bank in performing its ordinary Collateral Agent Trustee function pursuant to this Agreement the Indenture (so long as it shall also serve as Collateral Agent Trustee under this Agreementthe Indenture), or as may be required by this Agreementthe Indenture, as the Borrower Issuer or Collateral Asset Manager may reasonably request from time to timetime may be provided without unreasonable burden or expense.
(viii) At the request and direction of the Asset Manager, and pursuant to Section 7.17 of the Indenture, provide to the Collateral Trustee the information in its possession which the Issuer (or the Asset Manager on behalf of the Issuer), has determined to be Rule 144A Information.
(ix) Pursuant to its appointment as Calculation Agent (in such capacity, the “Calculation Agent”) under the Indenture, calculate the Benchmark applicable to each Class of Floating Rate Debt during each Interest Accrual Period and the Debt Interest Amount payable on each Payment Date in respect of such Class of Floating Rate Debt and the related Interest Accrual Period, in each case in accordance with the provisions of the Indenture. In its role as Calculation Agent hereunder and under the Indenture, the Calculation Agent shall have all of the benefits, rights, protections, immunities and indemnities of the Collateral Administrator under this Agreement.
(c) The After the Effective Date, upon the Collateral Administrator’s receipt of a written request of the Asset Manager shall cooperate with on any Business Day (provided such request is received by 12:00 Noon (Boston, Massachusetts time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)), the Collateral Administrator in connection with shall perform the matters described herein, including the confirmation by the Collateral Administrator following functions: (A) as of the calculations contained in date the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Asset Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or commits on behalf of the Collateral Manager that Issuer to purchase substitute Underlying Assets to be included in the Collateral Administrator may from time to time reasonably request with respect as Underlying Assets and (B) as of the date of such request, for the purpose of evaluating the inclusion of proposed substitute Underlying Assets, perform a pro forma calculation of the tests and other requirements constituting the Portfolio Criteria set forth in Section 12.2(c) of the Indenture, in each case, based upon information contained in the Collateral Database and information furnished by the Issuer or the Asset Manager as to the Collateral proposed substitute Underlying Assets, compare the results thereof against the applicable requirements set forth in said Section 12.2 and reasonably needed report the results thereof to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to Asset Manager in a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security)mutually agreed format.
(d) IfIn addition, in performing its duties under this Agreementon any Measurement Date, the Collateral Administrator shall determine whether the Event of Default Par Ratio is required equal to decide between alternative courses or greater than 102.5% on such Measurement Date.
(e) Upon the written request of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with Asset Manager on any Benchmark Replacement or any calculations required to be performed by Business Day after the Collateral Administrator’s receipt of such request and notification from the Asset Manager of its intent to sell, in accordance with Section 12.1(a) of the Indenture, an Underlying Asset, the Collateral Administrator may request written instructions (orshall calculate, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or after the Collateral ManagerAdministrator's receipt of such request (provided such request is received by no later than 12:00 Noon (Boston, upon which Massachusetts time) on such date (otherwise such request will be deemed made on the Collateral Administrator next succeeding Business Day)) whether (i) for sales of Credit Improved Obligations if the Disposition Proceeds from such sale are at least equal to the Investment Criteria Adjusted Balance of such Credit Improved Obligation or after giving effect to such sale, the sum of Aggregate Principal Amount of all Underlying Assets, plus all Eligible Investments representing Principal Proceeds will be greater than the Reinvestment Target Par Balance and (ii) for sales of Underlying Assets (other than Defaulted Obligation, a Credit Risk Obligation, a Credit Improved Obligation, an Equity Security any other asset received by the Issuer in a workout, restructuring or similar transaction), (A) the Aggregate Principal Amount of all such sales following the Closing Date through the calendar year ending in 2024 does not exceed 30% of the Effective Date Target Par Amount and thereafter, for all future calendar years, the Aggregate Principal Amount of all such sales does not exceed 30% of the sum of Aggregate Principal Amount of all Underlying Assets, plus all Eligible Investments representing Principal Proceeds (determined as of the first day of such calendar year) and (B) either at any time (1) the Disposition Proceeds from such sale are at least equal to the Investment Criteria Adjusted Balance of such Underlying Asset to be sold or (2) after giving effect to such sale, the Aggregate Principal Amount of all Underlying Assets (with Defaulted Obligations held for less than three years carried at their Current Market Value) plus all Eligible Investments representing Principal Proceeds will be greater than the Reinvestment Target Par Balance. For purposes of determining the percentage of Underlying Assets sold during any such period, the amount of any Underlying Assets sold shall be entitled to conclusively rely, as reduced to the course extent of action desired by it. If any purchases of Underlying Assets of the Collateral Administrator does not receive same obligor (which are pari passu or senior to such instructions sold Underlying Asset) occurring within two 20 Business Days after it has requested them, of such sale (determined based upon the Collateral Administrator may, but shall be under no duty to, take date of any relevant trade confirmation or refrain from taking commitment letter) so long as any such courses Underlying Asset was sold with the intention of actionpurchasing an Underlying Asset of the same obligor (which would be pari passu or senior to such sold Underlying Asset). The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except report its determinations to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator shall be entitled to rely on the advice of legal counsel and independent accountants Asset Manager in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advicea mutually agreed format.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (Ares Capital Corp)
Powers and Duties of Collateral Administrator. (a) U.S. Bank Virtus Group, LP shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. BankVirtus Group, LP’s resignation or removal as Collateral Administrator pursuant to Section 15.04 hereof. In such capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, and in providing to the Borrower and the Collateral Manager (and, where applicable, the Borrower’s Independent Accountants) certain reports, calculations and other data (as may be mutually agreed upon by the parties hereto), based upon information and data received from the Borrower and/or Collateral Manager, which reports, calculations and other data the Borrower or the Collateral Manager on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or 750499896 22723957 which are necessary to be performed in order that certain reports and calculations can be performed as required) under Section 8.06. U.S. BankVirtus Group, LP’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under this Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower or the Collateral Manager under or pursuant to this AgreementAgreement or any other Facility Document.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”);
(ii) Update the Collateral Database promptly for changes and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
(v) [Reserved];
(vi) [Reserved]; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as the Borrower or Collateral Manager may reasonably request from time to time.
(ca) The Collateral Manager and the Borrower shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in the Monthly ReportsReports or otherwise reasonably requested hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to a Collateral Loan (including as to its designation as a Defaulted Collateral Loan, Ineligible Loan Collateral Loan, Equity Security or Equity SecurityCredit Improved Loan).
(db) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, Manager as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two five Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such twofive-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(ec) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement and, to the extent applicable, the Credit Agreement, until the earlier of the termination of this Agreement or U.S. Bank’s resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Company and the Collateral Manager by in connection with maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, and in providing to the Borrower Company and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Section 2(b) below (in each case in such form and content, and in such greater detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Credit Agreement), based upon information and data received from the Company, the Collateral Manager or Third Party Sources (as defined below), which reports, schedules and calculations and other data the Borrower Company or the Collateral Manager on its behalf, and/or the or Collateral Administrator on the Company’s behalf is required to prepare and deliver (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.06Sections 8.1010 and 9.1(c) of the Credit Agreement. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement and the Credit Agreement. By entering into, or performing its duties under, this Agreement and the Credit Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Company or Collateral Manager under the Credit Agreement, or of the Collateral Manager under this the Collateral Management Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Company under or pursuant to the Credit Agreement or of the Collateral Manager under or pursuant to this the Collateral Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 days after the Closing Date, create a collateral database containing such specifications and information with respect to the Collateral Obligations and Eligible Investments as the Collateral Manager and Collateral Administrator shall reasonably agree (the “Collateral Database”);
(ii) Assist the Collateral Manager in reconciling any variance between the Collateral Database and the Collateral Manager’s version of the same and the test results (whether required under the Credit Agreement or otherwise) and, in connection with the ongoing management of the Collateral portfolio by the Collateral Manager, including the evaluation of proposed trades, use reasonable efforts to resolve promptly any variance or other discrepancy between the two models;
(iii) Update the Collateral Database promptly daily for changes, including for ratings changes and to reflect the sale or other disposition of the Collateral Loans Obligations included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans Collateral Obligations from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower Company or Collateral Manager as may be reasonably required under the Credit Agreement or requested by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or by Third Party Sources, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this the Credit Agreement;
(iiiiv) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the BorrowerCompany, as the Collateral Administrator and the Collateral Manager shall reasonably requestagree, including by way of reasonable electronic access (by access to the Collateral Administrator’s internet website) to the reports generated by the Collateral Administrator pursuant to this Agreement;
(ivv) Track the receipt and daily allocation to the Interest Collection Account or Principal Collection Account with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, by 11:00 a.m. (New York time) on each Business Day, provide to the Collateral Manager daily reports the Daily Report reflecting such actions to the Collection Accounts accounts as of the close of business on the preceding Business Day;
(v) [Reserved]Day in accordance with the terms of Section 8.10 of the Credit Agreement;
(vi) [Reserved]Prepare, on behalf of the Company, and arrange for delivery in accordance with the Credit Agreement within the time frames stated therein, the Collateral Report and Quarterly Distribution Report pursuant to the terms of Section 8.10 of the Credit Agreement (and cooperate with the Collateral Manager, on behalf of the Company, in connection with the comparison of information and discrepancies, if any, as contemplated by the provisions of said Section 8.10 of the Credit Agreement), on the basis of the information contained in the Collateral Database as of the applicable determination date for each such report, or to the extent not contained in the Collateral Database, provided by the Collateral Manager, the Lenders, or otherwise maintained by U.S. Bank, in its capacity as Collateral Agent;
(vii) After the date that is 30 days after the Closing Date (or such earlier date as shall be agreed to by the Collateral Administrator), upon the written request of the Company or Collateral Manager on its behalf, on any Business Day and within three hours after the Collateral Administrator’s receipt of such request (provided such request is received by 12:00 Noon (New York time)) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Administrator shall perform the following functions: (A) as of the date the Collateral Manager commits on behalf of the Company to purchase or originate a Collateral Obligation to be included in the Collateral and (B) as of the date of such request, for the purpose of evaluating the inclusion of a proposed Collateral Obligation in the Collateral, perform a pro forma calculation of the tests and other requirements constituting the Eligibility Criteria, in each case, based upon information contained in the Collateral Database and information furnished by the Collateral Manager or Company as to the proposed Collateral Obligation, compare the results thereof against the applicable requirements set forth in the definition of Eligibility Criteria and report the results thereof to the Company and Collateral Manager in a mutually agreed format. For the avoidance of doubt, the foregoing requests may be made in respect of any number of hypothetical trades, and no such request shall obligate the Company or Collateral Manager to make the actual trade or commitment;
(viii) Upon the Collateral Administrator’s receipt on any Business Day of written notification from the Company or the Collateral Manager on its behalf of its intent to sell, in accordance with Section 10.1(a) of the Credit Agreement, a Collateral Obligation (other than a Defaulted Loan, a Credit Risk Loan, a Credit Improved Loan or an Equity Security), the Collateral Administrator shall determine and report to the Company and Collateral Manager whether, after giving effect to such sale, the Aggregate Principal Balance of all such Loans sold under Section 10.1(a) during the preceding period of twelve calendar months (or, for the first twelve calendar months after the Closing Date, during the period commencing on the Closing Date) does not exceed 30% of the Total Capitalization as of the first day of such twelve calendar month period (or as of the Closing Date, as the case may be);
(ix) Reasonably cooperate with the independent accountants appointed by the Company (or the Collateral Manager on its behalf) in the preparation by such accountants of the reports required under and as contemplated by Section 5.33 of the Credit Agreement;
(x) Reasonably cooperate with the Company and the Collateral Manager in providing the Rating Agency then rating the Loans with such additional information as may be reasonably requested by the Rating Agencies and that can be provided without unreasonable burden or expense;
(xi) Reasonably cooperate with the Company and the Collateral Manager in providing the Administrative Agent and Lenders with such additional information as may be reasonably requested by them in accordance with the Credit Agreement and that can be provided without unreasonable burden or expense; and
(viixii) So long as the same Person serves as both Collateral Administrator hereunder and as Collateral Agent under this the Credit Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this the Credit Agreement), or as may be required by this the Credit Agreement, as the Borrower Company or Collateral Manager may reasonably request from time to time.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the calculations contained in the Monthly Collateral Reports and Quarterly Distribution Reports. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower Company (or Collateral Manager on its behalf) under this the Credit Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations complete the reports and certificates required to be prepared by the Collateral Administrator hereunder or under the Credit Agreement or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) or thereunder and any other information that may be requested by the Collateral Administrator or is reasonably required under this the Credit Agreement with respect to any item of Collateral. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of any item of Collateral under the Credit Agreement (it being understood that any such characterization or categorization shall be based exclusively upon the determination and notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and verify the contents of the aforesaid reports, instructions, statements and certificates and shall send such reports, instructions, statements and certificates to the Company for execution. In addition, the Collateral Manager shall provide prompt notice to the Collateral Administrator upon its becoming aware that a Collateral Loan (including as to its designation as Obligation has become a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administrator, the Collateral Administrator may (but shall not be obligated to) request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower Company or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively relyrely without liability on its part, as to the course of action or methodology desired by it, and shall be entitled to refrain from action pending receipt of such instruction; provided that in the event of conflicting instructions, the instructions of the Collateral Manager shall prevail. If the Collateral Administrator does not receive such instructions within two five Business Days (or such earlier time as the Collateral Administrator is required to act (as identified in such request)) after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action; provided that the Collateral Administrator promptly notifies the Collateral Manager and the Company which course of action, if any, it has decided to take. The Collateral Administrator shall act in accordance with instructions received after such twofive-Business Day period (or such earlier period specified by the Collateral Administrator in its request) except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (AB Private Credit Investors Corp)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall The Issuer hereby appoints State Street, and State Street hereby accepts its appointment, as the Issuer’s agent to act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. BankState Street’s resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Collateral Manager in connection with monitoring the Collateral solely by maintaining a database of certain characteristics with respect to of the Collateral on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Sections 2(b) through 2(e) below (in each case in such form and content, and in such detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer and/or the Collateral Manager (in addition to certain information that may be received from the Trustee in respect of Eligible Investments and cash balances in Accounts, as provided herein), which reports, schedules and calculations and other data the Borrower Issuer or the Collateral Manager Manager, on its behalf, and/or the Collateral Administrator is required to prepare and deliver or perform (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.0610.5 of the Indenture. U.S. BankState Street’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture, or of the Collateral Manager under this Agreementthe Collateral Management Agreement or the Indenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer or the Trustee under or pursuant to the Indenture or of the Collateral Manager under or pursuant to this the Indenture or the Collateral Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Portfolio Assets and Eligible Investments included in the Collateral that is Granted to the Trustee, as provided in this Agreement (the “Collateral Database”)) and provide access to the information contained therein to the Collateral Manager and the Issuer;
(ii) Update the Collateral Database promptly on a daily basis for changes changes, including for Xxxxx’x and Standard & Poor’s ratings changes, and to promptly reflect the sale or other disposition of the Collateral Loans Portfolio Assets included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans Portfolio Assets and Eligible Investments from time to timetime and any amendment or change to loan amounts held as Collateral, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower Issuer or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or that may be provided by the Trustee (based on information maintained upon notices received by U.S. Bank in its capacity as Collateral Agent the Trustee from the issuer, trustee or agent bank under this Agreementan Underlying Instrument, or other similar source);
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Accounts of Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day, and provide to the Trustee such other information as may be needed by the Trustee with respect to the Priority of Payments and Payment Dates;
(iv) Prepare, on behalf of the Issuer or the Collateral Manager on the Issuer’s behalf, and arrange for delivery in accordance with the Indenture within the time frames stated therein, (A) beginning in June 2013, the Payment Date Reports pursuant to the terms of Section 10.5(a) of the Indenture, on the basis of the information contained in the Collateral Database as of the applicable Determination Date (and in that regard cooperate with the Collateral Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the last paragraph of said Section 10.5(a) of the Indenture), and (B) beginning on the day after Closing Date as and to the extent mutually agreed, and thereafter on a fully operational basis as promptly as the Collateral Administrator is able to do so with commercially reasonable efforts, the Daily Reports pursuant to Section 10.5(c) of the Indenture, on the basis of the information contained in the Collateral Database or provided by the Trustee or the Collateral Manager as of the close of business on the preceding Business Day;
(v) [Reservedreserved];
(vi) [Reserved]; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as the Borrower or Collateral Manager may reasonably request from time to time.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administrator, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Collateral Administration Agreement (CM Finance Inc)
Powers and Duties of Collateral Administrator. (a) The Issuer hereby appoints U.S. Bank, and U.S. Bank shall hereby accepts its appointment, as the Issuer's agent to act as Collateral Administrator pursuant to the terms of this Agreement, until the earlier of U.S. Bank’s 's resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof or until the termination of this Agreement pursuant to Section 6 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Collateral Manager in connection with monitoring the Collateral solely by maintaining a database of certain characteristics with respect to of the Collateral on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Sections 2(b) through 2(e) below (in each case in such form and content, and in such detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer and/or the Collateral Manager (in addition to certain information that may be received from the Trustee in respect of Eligible Investments and cash balances in Accounts, as provided herein), which reports, schedules and calculations and other data the Borrower Issuer or the Collateral Manager Manager, on its behalf, and/or the Collateral Administrator is required to prepare and deliver or perform (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.0610.5 of the Indenture. U.S. Bank’s The Collateral Administrator's duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture, or of the Collateral Manager under this Agreementthe Collateral Management Agreement or the Indenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer or the Trustee under or pursuant to the Indenture or of the Collateral Manager under or pursuant to this the Indenture or the Collateral Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Portfolio Assets and Eligible Investments included in the Collateral that is Granted to the Trustee, as provided in this Agreement (the “"Collateral Database”)") and provide access to the information contained therein to the Collateral Manager and the Issuer;
(ii) Update the Collateral Database promptly on a daily basis for changes changes, including for Moody's and Standard & Poor's ratings changes, and to reflect the sale or other disposition of the Collateral Loans Portfolio Assets included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans Portfolio Assets and Eligible Investments from time to timetime and any amendment or change to loan amounts held as Collateral, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or Issuer, Collateral Manager or the Liquidation Agent as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or that may be provided by the Trustee (based on information maintained upon notices received by U.S. Bank in its capacity as Collateral Agent the Trustee from the issuer, trustee or agent bank under this Agreementan Underlying Instrument, or other similar source);
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Accounts of Interest Proceeds Collections and Principal Proceeds and the outstanding balance therein, Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
(v) [Reserved];
(vi) [Reserved], and provide to the Trustee such other information as may be needed by the Trustee with respect to the Priority of Payments and Payment Dates; and
(viiiv) So long as Prepare, on behalf of the same Person serves as both Issuer or the Collateral Administrator Manager on the Issuer's behalf, and as Collateral Agent under this Agreementarrange for delivery in accordance with the Indenture within the time frames stated therein, provide such other information with respect (A) beginning in April 2015, a draft of the Payment Date Reports pursuant to the terms of Section 10.5(a) of the Indenture, on the basis of the information contained in the Collateral Database as may be routinely maintained by of the applicable Determination Date (and in that regard cooperate with the Collateral Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the penultimate paragraph of said Section 10.5(a) of the Indenture), and (B) beginning on the day after the Closing Date as and to the extent mutually agreed, and thereafter on a fully operational basis as promptly as the Collateral Administrator in performing its ordinary Collateral Agent function is able to do so with commercially reasonable efforts, each Daily Report required to be delivered under Section 10.5(c) of the Indenture and each Weekly Report required to be delivered under Section 10.5(b) of the Indenture and any reports delivered on the Redemption Date pursuant to this Agreement Section 10.5(d) of the Indenture (so long as it shall also serve as Collateral Agent under this Agreementthe "Redemption Date Reports"), in each case on the basis of the information contained in the Collateral Database or as may be required provided by this Agreement, as the Borrower Trustee or the Collateral Manager may reasonably request from time to timeas of the close of business on the preceding Business Day.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the calculations contained Payment Date Reports, Daily Reports, Weekly Reports and other statements and certifications required in connection with the Monthly Reportspurchase and sale of the Collateral under the Indenture. Without limiting the generality of the foregoing, the Collateral Manager shall advise supply in a timely manner the Collateral Administrator of the results of fashion any determinations required or permitted to be made information maintained by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed need1 in order to perform its obligations complete the reports and certificates and calculations required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (hereunder, including without limitation, the Collateral Manager’s determinations market value and categorization of Market Valuea Portfolio Asset, Aggregate Collateral Balanceto the extent required by the Indenture, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement the Indenture with respect to a Defaulted Obligation (including, without limitation, promptly notifying the Collateral Loan (including as to its designation as Administrator upon any Portfolio Asset becoming a Defaulted Loan, Ineligible Loan Obligation or Equity Security). Except with respect to the Daily Reports, the Collateral Manager shall review, verify and approve the contents of the aforesaid reports, instructions, statements and certificates and shall send such reports, instructions, statements and certificates to the Issuer for execution (or shall execute the same on behalf of the Issuer) as may be required by the Indenture (and in accordance with the Collateral Management Agreement), and furnish such signed reports to the Collateral Administrator for prompt distribution in accordance with the Indenture. To the extent any of the information in such reports, instructions, statements and certificates conflicts with data or calculations in the records of the Collateral Manager, the Collateral Manager shall notify the Collateral Administrator of such discrepancy and use reasonable efforts to assist the Collateral Administrator in reconciling such discrepancy. The Collateral Manager shall cooperate with the Collateral Administrator by answering questions posed by the Collateral Administrator that are reasonably related to such reports, instructions, statements and certificates. The Collateral Administrator shall provide such items (other than the Daily Reports and Weekly Reports) to the Collateral Manager no later than 3 Business Days prior to the due date as set forth above to enable such review by the Collateral Manager. At the instruction of the Collateral Manager, the Collateral Administrator shall attach to any reports such additional information that is timely provided by the Collateral Manager and independently prepared by, or on behalf of the Collateral Manager. The Collateral Manager shall be solely responsible for the content of any such additional information.
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which acting on behalf of the Collateral Administrator shall be entitled to conclusively relyIssuer, as to the course of action desired by it. If for any reason the Collateral Administrator does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, take action inconsistent with such instructions. The Collateral Administrator 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. The Collateral Administrator shall have no obligation or determine any market value or market price in connection with any actions or duties under this Agreement. 1 Note to MVA: This should be “need” and not “needed” because it references information the CA may reasonably need to complete the reports etc.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(f) Without limiting its reporting obligations under this Agreement, the Collateral Administrator shall have no obligation to determine (and the Collateral Manager will timely advise the Collateral Administrator)
(i) whether any Portfolio Asset satisfies the criteria for the acquisition thereof as set forth in the Indenture, including without limitation, as set forth in the definitions of "Asset Eligibility Criteria", "Defaulted Obligation", "DIP Loan", "Equity Security", "Loan", "Margin Stock", "Participation Interest", "Portfolio Asset", "Second Lien Loan", "Senior Secured Loan" or "Structured Finance Obligation" or (ii) whether the conditions specified in the definition of "Delivered" have been complied with.
Appears in 1 contract
Samples: Collateral Administration Agreement (Business Development Corp of America)
Powers and Duties of Collateral Administrator. (a) U.S. Bank shall act as Collateral Administrator pursuant to the terms of this Agreement, until U.S. Bank’s resignation or removal as Collateral Administrator pursuant to Section 15.04 hereof. In such capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by maintaining a database of certain characteristics with respect to the Collateral on an ongoing basis, and in providing to the Borrower and the Collateral Manager certain reports, calculations and other data (as may be mutually agreed upon by the parties hereto), which reports, calculations and other data the Borrower or the Collateral Manager on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or which are necessary to be performed in order that certain reports and calculations can be performed as required) under Section 8.06. U.S. Bank’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under this Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within 30 days after the Closing Date, create a collateral database with respect to the Collateral (the “Collateral Database”);
(ii) Update the Collateral Database promptly for changes and to reflect the sale or other disposition of the Collateral Loans included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors from time to time, or based on information maintained by U.S. Bank in its capacity as Collateral Agent under this Agreement;
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Interest Proceeds and Principal Proceeds and the outstanding balance therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day;
(v) [Reserved];
(vi) [Reserved]; and
(vii) So long as the same Person serves as both Collateral Administrator and as Collateral Agent under this Agreement, provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as the Borrower or Collateral Manager may reasonably request from time to time.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation by the Collateral Administrator of the calculations contained in the Monthly Reports. Without limiting the generality of the foregoing, the Collateral Manager shall advise in a timely manner the Collateral Administrator of the results of any determinations required or permitted to be made by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed to perform its obligations hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (including the Collateral Manager’s determinations of Market Value, Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement with respect to a Collateral Loan (including as to its designation as a Defaulted Loan, Ineligible Loan or Equity Security).
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which the Collateral Administrator shall be entitled to conclusively rely, Manager as to the course of action desired by it. If the Collateral Administrator does not receive such instructions within two Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Administrator 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.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Powers and Duties of Collateral Administrator. (a) The Issuer hereby appoints U.S. Bank, and U.S. Bank shall hereby accepts its appointment, as the Issuer’s agent to act as Collateral Administrator pursuant to the terms of this Agreement, until the earlier of U.S. Bank’s resignation or removal as Collateral Administrator pursuant to Section 15.04 7 hereof or until the termination of this Agreement pursuant to Section 6 hereof. In such capacity, the Collateral Administrator shall assist the Borrower Issuer and the Collateral Manager in connection with monitoring the Collateral solely by maintaining a database of certain characteristics with respect to of the Collateral on an ongoing basis, and in providing to the Borrower Issuer and the Collateral Manager certain reports, calculations schedules and other data calculations, all as more particularly described in Sections 2(b) through 2(e) below (in each case in such form and content, and in such detail, as may be mutually agreed upon by the parties heretohereto from time to time and as may be required by the Indenture), based upon information and data received from the Issuer and/or the Collateral Manager (in addition to certain information that may be received from the Trustee in respect of Eligible Investments and cash balances in Accounts, as provided herein), which reports, schedules and calculations and other data the Borrower Issuer or the Collateral Manager Manager, on its behalf, and/or the Collateral Administrator is required to prepare and deliver or perform (or which are necessary to be performed in order that certain reports reports, schedules and calculations can be performed as required) under Section 8.0610.5 of the Indenture. U.S. BankThe Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically set forth in this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral Administrator shall not be deemed to assume any obligations or liabilities of the Borrower Issuer under the Indenture, or of the Collateral Manager under this Agreementthe Collateral Management Agreement or the Indenture, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or liabilities of the Borrower Issuer or the Trustee under or pursuant to the Indenture or of the Collateral Manager under or pursuant to this the Indenture or the Collateral Management Agreement.
(b) The Collateral Administrator shall perform the following general functions from time to time:
(i) Promptly, and in any event within Within 30 days after the Closing Date, create a collateral database with respect to the Portfolio Assets and Eligible Investments included in the Collateral that is Granted to the Trustee, as provided in this Agreement (the “Collateral Database”)) and provide access to the information contained therein to the Collateral Manager and the Issuer;
(ii) Update the Collateral Database promptly on a daily basis for changes changes, including for Moody’s and Standard & Poor’s ratings changes, and to reflect the sale or other disposition of the Collateral Loans Portfolio Assets included in the Collateral (the “Portfolio Collateral”) and the addition to the Collateral of additional Loans Portfolio Assets and Eligible Investments from time to timetime and any amendment or change to loan amounts held as Collateral, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or Issuer, Collateral Manager or the Liquidation Agent as may be reasonably required by the Collateral Administrator, or by the agents for the underlying obligors Administrator from time to time, or that may be provided by the Trustee (based on information maintained upon notices received by U.S. Bank in its capacity as Collateral Agent the Trustee from the issuer, trustee or agent bank under this Agreementan Underlying Instrument, or other similar source);
(iii) Provide or make available the information contained in the Collateral Database to the Collateral Manager on behalf of the Borrower, as the Collateral Manager shall reasonably request;
(iv) Track the receipt and daily allocation to the Collection Account with respect to Accounts of Interest Proceeds Collections and Principal Proceeds and the outstanding balance therein, Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions to the Collection Accounts as of the close of business on the preceding Business Day (which reports may be included in the Daily Report referenced below), and provide to the Trustee such other information as may be needed by the Trustee with respect to the Priority of Payments and Payment Dates; and
(iv) Prepare, on behalf of the Issuer or the Collateral Manager on the Issuer’s behalf, and arrange for delivery in accordance with the Indenture within the time frames stated therein, (A) beginning in July, 2017, a draft of the Payment Date Reports pursuant to the terms of Section 10.5(a) of the Indenture, on the basis of the information contained in the Collateral Database as of the applicable Determination Date (and in that regard cooperate with the Collateral Manager, on behalf of the Issuer, in connection with the comparison of information and discrepancies, if any, required under the penultimate paragraph of said Section 10.5(a) of the Indenture), and (B) beginning on the day after the Closing Date as and to the extent mutually agreed, and thereafter on a fully operational basis as promptly as the Collateral Administrator is able to do so with commercially reasonable efforts, each Daily Report required to be delivered under Section 10.5(b) of the Indenture and any reports delivered on any Redemption Date pursuant to Section 10.5(d) of the Indenture (the “Redemption Date Reports”), in each case on the basis of the information contained in the Collateral Database or provided by the Trustee or the Collateral Manager as of the close of business on the preceding Business Day;.
(v) [Reserved];
Prepare, on behalf of the Issuer or the Collateral Manager on the Issuer’s behalf, and arrange for delivery in accordance with the Indenture within the time frames stated therein, a report pursuant to Section 10.5(c) of the Indenture (vi) [Reserved]; and
(vii) So long as the same Person serves as both “Collateral Change Event and Repayment Date Report”), in each case on the basis of information contained within the Collateral Change Event Notice delivered to the Collateral Administrator and as Collateral Agent under this Agreement, provide such other on the basis of the information with respect to contained in the Collateral as may be routinely maintained Database or otherwise provided by the Collateral Administrator in performing its ordinary Collateral Agent function pursuant to this Agreement (so long as it shall also serve as Collateral Agent under this Agreement), or as may be required by this Agreement, as the Borrower or Collateral Manager may reasonably request from time to timeManager.
(c) The Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including the confirmation preparation by the Collateral Administrator of the Payment Date Reports, Daily Reports, Collateral Change Event and Repayment Date Reports and other statements and calculations contained in the Monthly Reportsrequired hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise supply in a timely manner the Collateral Administrator of the results of fashion any determinations required or permitted to be made information maintained by it or the Borrower under this Agreement and supply the Collateral Administrator with such other information (in a mutually agreeable format) as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may from time to time reasonably request with respect to the Collateral and reasonably needed need in order to perform its obligations complete the reports, statements and calculations required to be prepared by the Collateral Administrator hereunder or required to permit the Collateral Administrator to perform its obligations hereunder (hereunder, including without limitation, the Collateral Manager’s determinations market value and categorization of Market Valuea Portfolio Asset, Aggregate Collateral Balanceto the extent required by the Indenture, Concentration Limitations and the Borrowing Base, as applicable) and any other information that may be reasonably required under this Agreement the Indenture with respect to a Defaulted Obligation (including, without limitation, promptly notifying the Collateral Loan (including as to its designation as Administrator upon any Portfolio Asset becoming a Defaulted Loan, Ineligible Loan Obligation or Equity Security). Except with respect to the Daily Reports, the Collateral Manager shall review, verify and approve the contents of the aforesaid reports, statements and calculations and shall approve for prompt distribution in accordance with the Indenture. To the extent any of the information in such reports, statements and calculations conflicts with data or calculations in the records of the Collateral Manager, the Collateral Manager shall notify the Collateral Administrator of such discrepancy and use reasonable efforts to assist the Collateral Administrator in reconciling such discrepancy. The Collateral Manager shall cooperate with the Collateral Administrator by answering questions posed by the Collateral Administrator that are reasonably related to such reports, instructions, statements and certificates. The Collateral Administrator shall provide such items (other than the Daily Reports and the Collateral Change Event and Repayment Date Reports required to be prepared and delivered on any Collateral Change Trade Date or Repayment Date pursuant to Section 10.5(c)(ii)) to the Collateral Manager no later than three (3) Business Days prior to the due date as set forth above to enable such review by the Collateral Manager. At the instruction of the Collateral Manager, the Collateral Administrator shall attach to any reports such additional information that is timely provided by the Collateral Manager and independently prepared by, or on behalf of the Collateral Manager. The Collateral Manager shall be solely responsible for the content of any such additional information.
(d) If, in performing its duties under this Agreement, the Collateral Administrator is required to decide between alternative courses of action or is otherwise uncertain as to the performance of its duties, including alternative methodologies in connection with any Benchmark Replacement or any calculations required to be performed by the Collateral Administratoraction, the Collateral Administrator may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Borrower or the Collateral Manager, upon which acting on behalf of the Collateral Administrator shall be entitled to conclusively relyIssuer, as to the course of action desired by it. If for any reason the Collateral Administrator does not receive such instructions within two five (5) Business Days after it has requested them, the Collateral Administrator may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Administrator shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, take action inconsistent with such instructions. The Collateral Administrator 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. The Collateral Administrator shall have no obligation to determine any market value or market price in connection with any actions or duties under this Agreement.
(e) Nothing herein shall prevent the Collateral Administrator or any of its Affiliates affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(f) Without limiting its reporting obligations under this Agreement, the Collateral Administrator shall have no obligation to determine (and the Collateral Manager will timely advise the Collateral Administrator)
(i) the type, classification or characterization of any Portfolio Asset or whether any Portfolio Asset satisfies the criteria for the acquisition thereof as set forth in the Indenture or the Equity Contribution Agreement, including without limitation and as applicable, as set forth in the definitions of “Additional Funding Asset”, “Affiliated Loan”, “Bond”, “Committed Proceeds Asset”, “Defaulted Obligation”, “Delayed-Draw Loan”, “Equity Security”, “Government Security”, “Illiquid Asset”, “Loan”, “Margin Stock”, “Participation Interest”, “Revolver Loan”, “Senior Secured (Type I) Loan”, “Senior Secured (Type I Cov-Lite) Loan”, “Senior Secured (Type II) Loan”, “Senior Secured (Type III) Loan”, “Senior Secured (Type IV) Loan”, “Senior Secured Last Out (Type I) Loan”, “ Senior Secured Last Out (Type II) Loan”, “Sold Participation Interest Loan”, “Structured Finance Obligation’, “Synthetic Security”, “Traditional Second Lien Loan” or “Zero Value Portfolio Asset”, (ii) the domicile or other classification or characterization of an Obligor, (iii) whether the conditions specified in the definition of “Delivered” have been complied with or (iv) the Initial Market Value or Advance Value of a Portfolio Asset.
Appears in 1 contract
Samples: Collateral Administration Agreement (CION Investment Corp)
