Procedures Relating to the Establishment of Borrower Accounts Controlled by the Collateral Agent. (a) Notwithstanding any term in this Agreement to the contrary and notwithstanding the terms of Part 5 of Article 8 of the UCC, to the extent applicable, with respect to Collateral Obligations delivered to the Collateral Agent, any custodian acting on its behalf, or the Bank acting as Borrower Accounts Securities Intermediary pursuant to the provisions of this Agreement, the Collateral Agent, any custodian acting on its behalf, or the Bank acting as, Borrower Accounts Securities Intermediary shall be obligated to receive and hold until released pursuant to the terms of this Agreement the items delivered or caused to be delivered to it by the Borrower or the Investment Manager, and to hold the same in its custody in accordance with the terms of the Transaction Documents but shall have no further obligation with respect to, or be obligated to take (or to determine whether there has been taken) any action in connection with the delivery of such Collateral Obligations. Without limiting the foregoing, in no instance shall the Collateral Agent, any such custodian or the Bank acting as Borrower Accounts Securities Intermediary be under any duty or obligation to examine the underlying credit agreement, loan agreement, participation agreement, Agreement, trust agreement or similar instrument that may be applicable to any Collateral Obligation in order to determine (or otherwise to determine under applicable law) whether sufficient actions have been taken and documents delivered (including without limitation, any requisite obligor or agent bank consents, notices or filings) in order to properly assign, transfer, or otherwise convey title to such Collateral Obligations. In connection with the delivery of any Collateral Obligation, the Borrower or the Investment Manager shall send to the Collateral Agent and the Collateral Administrator a trade ticket or transmittal letter (in form and content mutually reasonably acceptable to them), which shall, at a minimum (in addition to other appropriate information with regard to the subject Collateral Obligation as may be mutually agreed upon between the Collateral Administrator and the Investment Manager), (i) specify the purchase price for such Collateral Obligation, and (ii) identify the Collateral Obligation and its material amount, payment and interest rate terms. Each of the Collateral Agent, the Collateral Administrator, any custodian acting on its behalf and the Bank acting as Borrower Accounts Securities Intermediary shall be entitled to assume the genuineness, validity and enforceability of each such note, certificate, instrument and agreement delivered to it in connection with the delivery of a Collateral Obligation, and to assume that each is what it purports on its face to be, and to assume the genuineness and due authority of all signatures appearing thereon. (b) Nothing in this Section 8 shall impose upon the Borrower Accounts Securities Intermediary the duties, obligations or liabilities of the Collateral Agent; and nothing herein shall impose upon the Collateral Agent the duties, obligations or liabilities of the Borrower Accounts Securities Intermediary. On each Payment Date, Interest Proceeds shall be applied as follows: (1) to the payment of taxes of the Borrower, if any, and any governmental fee, including all filing, registration and annual return fees payable by the Borrower; (2) to the payment of accrued and unpaid Administrative Expenses constituting (x) fees of the Bank Parties under the Transaction Documents and reimbursement of expenses (including indemnity payments) of the Bank Parties pursuant to the terms of this Agreement and the other Transaction Documents and (y) fees and reimbursement of expenses (including indemnity payments) of the Collateral Administrator under the Collateral Administration Agreement; provided that total payments pursuant to this subclause (2) shall not exceed, on any Payment Date other than the First Payment Date, an amount equal to a percentage of the Aggregate Principal Amount of the Collateral Portfolio equal to an annual rate of 0.02%, measured as of the beginning of the Due Period preceding such Payment Date; and, with respect to the First Payment Date, 0.005% (not annualized) of the Aggregate Principal Amount of the Collateral Portfolio, measured as of the beginning of the Due Period preceding such Payment Date; (3) to the payment (in the order set forth in the definition of Administrative Expenses), of (a) first, remaining accrued and unpaid Administrative Expenses (other than indemnity payments) of the Borrower including other amounts payable by the Borrower to the Investment Manager under the Investment Management Agreement (excluding any Investment Management Fee), and to the Bank Parties and the Collateral Administrator constituting Administrative Expenses (other than indemnity payments) not paid pursuant to subclause (2) above, and (b) second, remaining accrued and unpaid Administrative Expenses of the Borrower constituting indemnity payments; provided that such payments pursuant to this subclause (3) shall not exceed an amount equal on any Payment Date (when taken together with any Administrative Expenses paid during the period since the preceding Payment Date or, in the case of the First Payment Date, the Closing Date) to $325,000 per annum; (4) to the payment of accrued and unpaid interest, Make-Whole Amounts (if any) and other amounts due and payable on the Loans (in each case other than principal of the Loans); (5) to the payment, first, pari passu, of any accrued and unpaid fees and expenses of the Collateral Administrator and the Bank Parties; second, in the order set forth in the definition of Administrative Expenses, of any accrued and unpaid Administrative Expenses of the Borrower (including, for the avoidance of doubt and without limitation, (a) indemnities and amounts payable by the Borrower to the Bank Parties and the Collateral Administrator and (b) indemnities and amounts payable by the Borrower to the Investment Manager under the Investment Management Agreement (other than any Investment Management Fee)), in each case to the extent not paid pursuant to subclauses (2) and (3) above; (6) to the payment to the Investment Manager of, first, the current Investment Management Fee in accordance with the terms of the Investment Management Agreement and, then, any accrued and previously unpaid Investment Management Fee; and (7) the balance of Interest Proceeds to the Borrower for distribution to the Equity Owner as a dividend payment thereon or as a final distribution in redemption thereof, as applicable.
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Samples: Credit Agreement (FS Investment Corp II), Credit Agreement (FS Energy & Power Fund)
Procedures Relating to the Establishment of Borrower Accounts Controlled by the Collateral Agent. (a) Notwithstanding any term in this Agreement to the contrary and notwithstanding the terms of Part 5 of Article 8 of the UCC, to the extent applicable, with respect to Collateral Obligations delivered to the Collateral Agent, any custodian acting on its behalf, or the Bank acting as Borrower Accounts Securities Intermediary pursuant to the provisions of this Agreement, the Collateral Agent, any custodian acting on its behalf, or the Bank acting as, Borrower Accounts Securities Intermediary shall be obligated to receive and hold until released pursuant to the terms of this Agreement the items delivered or caused to be delivered to it by the Borrower or the Investment Manager, and to hold the same in its custody in accordance with the terms of the Transaction Documents but shall have no further obligation with respect to, or be obligated to take (or to determine whether there has been taken) any action in connection with the delivery of such Collateral Obligations. Without limiting the foregoing, in no instance shall the Collateral Agent, any such custodian or the Bank acting as Borrower Accounts Securities Intermediary be under any duty or obligation to examine the underlying credit agreement, loan agreement, participation agreement, Agreement, trust agreement or similar instrument that may be applicable to any Collateral Obligation in order to determine (or otherwise to determine under applicable law) whether sufficient actions have been taken and documents delivered (including without limitation, any requisite obligor or agent bank consents, notices or filings) in order to properly assign, transfer, or otherwise convey title to such Collateral Obligations. In connection with the delivery of any Collateral Obligation, the Borrower or the Investment Manager shall send to the Collateral Agent and the Collateral Administrator a trade ticket or transmittal letter (in form and content mutually reasonably acceptable to them), which shall, at a minimum (in addition to other appropriate information with regard to the subject Collateral Obligation as may be mutually agreed upon between the Collateral Administrator and the Investment Manager), (i) specify the purchase price for such Collateral Obligation, and (ii) identify the Collateral Obligation and its material amount, payment and interest rate terms. Each of the Collateral Agent, the Collateral Administrator, any custodian acting on its behalf and the Bank acting as Borrower Accounts Securities Intermediary shall be entitled to assume the genuineness, validity and enforceability of each such note, certificate, instrument and agreement delivered to it in connection with the delivery of a Collateral Obligation, and to assume that each is what it purports on its face to be, and to assume the genuineness and due authority of all signatures appearing thereon.
(b) Nothing in this Section 8 6.8 shall impose upon the Borrower Accounts Securities Intermediary the duties, obligations or liabilities of the Collateral Agent; and nothing herein shall impose upon the Collateral Agent the duties, obligations or liabilities of the Borrower Accounts Securities Intermediary. On each Payment Date, Interest Proceeds shall be applied as follows:
(1) to the payment of taxes of the Borrower, if any, and any governmental fee, including all filing, registration and annual return fees payable by the Borrower;
(2) to the payment of accrued and unpaid Administrative Expenses constituting (x) fees of the Bank Parties under the Transaction Documents and reimbursement of expenses (including indemnity payments) of the Bank Parties pursuant to the terms of this Agreement and the other Transaction Documents and (y) fees and reimbursement of expenses (including indemnity payments) of the Collateral Administrator under the Collateral Administration Agreement; provided that total payments pursuant to this subclause (2) shall not exceed, on any Payment Date other than the First Payment Date, an amount equal to a percentage of the Aggregate Principal Amount of the Collateral Portfolio equal to an annual rate of 0.02%, measured as of the beginning of the Due Period preceding such Payment Date; and, with respect to the First Payment Date, 0.005% (not annualized) of the Aggregate Principal Amount of the Collateral Portfolio, measured as of the beginning of the Due Period preceding such Payment Date;
(3) to the payment (in the order set forth in the definition of Administrative Expenses), of (a) first, remaining accrued and unpaid Administrative Expenses (other than indemnity payments) of the Borrower including other amounts payable by the Borrower to the Investment Manager under the Investment Management Agreement (excluding any Investment Management Fee), and to the Bank Parties and the Collateral Administrator constituting Administrative Expenses (other than indemnity payments) not paid pursuant to subclause (2) above, and (b) second, remaining accrued and unpaid Administrative Expenses of the Borrower constituting indemnity payments; provided that such payments pursuant to this subclause (3) shall not exceed an amount equal on any Payment Date (when taken together with any Administrative Expenses paid during the period since the preceding Payment Date or, in the case of the First Payment Date, the Closing Date) to $325,000 per annum;
(4) to the payment of accrued and unpaid interest, Make-Whole Amounts (if any) and other amounts due and payable on the Loans (in each case other than principal of the Loans);
(5) to the payment, first, pari passu, of any accrued and unpaid fees and expenses of the Collateral Administrator and the Bank Parties; second, in the order set forth in the definition of Administrative Expenses, of any accrued and unpaid Administrative Expenses of the Borrower (including, for the avoidance of doubt and without limitation, (a) indemnities and amounts payable by the Borrower to the Bank Parties and the Collateral Administrator and (b) indemnities and amounts payable by the Borrower to the Investment Manager under the Investment Management Agreement (other than any Investment Management Fee)), in each case to the extent not paid pursuant to subclauses (2) and (3) above;
(6) to the payment to the Investment Manager of, first, the current Investment Management Fee in accordance with the terms of the Investment Management Agreement and, then, any accrued and previously unpaid Investment Management Fee; and
(7) the balance of Interest Proceeds to the Borrower for distribution to the Equity Owner as a dividend payment thereon or as a final distribution in redemption thereof, as applicable.
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Procedures Relating to the Establishment of Borrower Accounts Controlled by the Collateral Agent. (a) Notwithstanding any term in this Agreement to the contrary and notwithstanding the terms of Part 5 of Article 8 of the UCC, to the extent applicable, with respect to Collateral Obligations delivered to the Collateral Agent, any custodian acting on its behalf, or the Bank acting as Borrower Accounts Securities Intermediary pursuant to the provisions of this Agreement, the Collateral Agent, any custodian acting on its behalf, or the Bank acting as, Borrower Accounts Securities Intermediary shall be obligated to receive and hold until released pursuant to the terms of this Agreement the items delivered or caused to be delivered to it by the Borrower or the Investment Manager, and to hold the same in its custody in accordance with the terms of the Transaction Documents but shall have no further obligation with respect to, or be obligated to take (or to determine whether there has been taken) any action in connection with the delivery of such Collateral Obligations. Without limiting the foregoing, in no instance shall the Collateral Agent, any such custodian or the Bank acting as Borrower Accounts Securities Intermediary be under any duty or obligation to examine the underlying credit agreement, loan agreement, participation agreement, Agreement, trust agreement or similar instrument that may be applicable to any Collateral Obligation in order to determine (or otherwise to determine under applicable law) whether sufficient actions have been taken and documents delivered (including without limitation, any requisite obligor or agent bank consents, notices or filings) in order to properly assign, transfer, or otherwise convey title to such Collateral Obligations. In connection with the delivery of any Collateral Obligation, the Borrower or the Investment Manager shall send to the Collateral Agent and the Collateral Administrator a trade ticket or transmittal letter (in form and content mutually reasonably acceptable to them), which shall, at a minimum (in addition to other appropriate information with regard to the subject Collateral Obligation as may be mutually agreed upon between the Collateral Administrator and the Investment Manager), (i) specify the purchase price for such Collateral Obligation, and (ii) identify the Collateral Obligation and its material amount, payment and interest rate terms. Each of the Collateral Agent, the Collateral Administrator, any custodian acting on its behalf and the Bank acting as Borrower Accounts Securities Intermediary shall be entitled to assume the genuineness, validity and enforceability of each such note, certificate, instrument and agreement delivered to it in connection with the delivery of a Collateral Obligation, and to assume that each is what it purports on its face to be, and to assume the genuineness and due authority of all signatures appearing thereon.
(b) Nothing in this Section 8 shall impose upon the Borrower Accounts Securities Intermediary the duties, obligations or liabilities of the Collateral Agent; and nothing herein shall impose upon the Collateral Agent the duties, obligations or liabilities of the Borrower Accounts Securities Intermediary. On each Payment Date, Interest Proceeds shall be applied as follows:
(1) to the payment of taxes of the Borrower, if any, and any governmental fee, including all filing, registration and annual return fees payable by the Borrower;
(2) to the payment of accrued and unpaid Administrative Expenses constituting (x) fees of the Bank Parties under the Transaction Documents and reimbursement of expenses (including indemnity payments) of the Bank Parties pursuant to the terms of this Agreement and the other Transaction Documents and (y) fees and reimbursement of expenses (including indemnity payments) of the Collateral Administrator under the Collateral Administration Agreement; provided that total payments pursuant to this subclause (2) shall not exceed, on any Payment Date other than the First Payment Date, an amount equal to a percentage of the Aggregate Principal Amount of the Collateral Portfolio equal to an annual rate of 0.02%, measured as of the beginning of the Due Period preceding such Payment Date; and, with respect to the First Payment Date, 0.005% (not annualized) of the Aggregate Principal Amount of the Collateral Portfolio, measured as of the beginning of the Due Period preceding such Payment Date;
(3) to the payment (in the order set forth in the definition of Administrative Expenses), of (a) first, remaining accrued and unpaid Administrative Expenses (other than indemnity payments) of the Borrower including other amounts payable by the Borrower to the Investment Manager under the Investment Management Agreement (excluding any Investment Management Fee), and to the Bank Parties and the Collateral Administrator constituting Administrative Expenses (other than indemnity payments) not paid pursuant to subclause (2) above, and (b) second, remaining accrued and unpaid Administrative Expenses of the Borrower constituting indemnity payments; provided that such payments pursuant to this subclause (3) shall not exceed an amount equal on any Payment Date (when taken together with any Administrative Expenses paid during the period since the preceding Payment Date or, in the case of the First Payment Date, the Closing Date) to $325,000 per annum;
(4) to the payment of accrued and unpaid interest, Make-Whole Amounts (if any) and other amounts due and payable on the Loans (in each case other than principal of the Loans);
(5) to the payment, first, pari passu, of any accrued and unpaid fees and expenses of the Collateral Administrator and the Bank Parties; second, in the order set forth in the definition of Administrative Expenses, of any accrued and unpaid Administrative Expenses of the Borrower (including, for the avoidance of doubt and without limitation, (a) indemnities and amounts payable by the Borrower to the Bank Parties and the Collateral Administrator and (b) indemnities and amounts payable by the Borrower to the Investment Manager under the Investment Management Agreement (other than any Investment Management Fee)), in each case to the extent not paid pursuant to subclauses (2) and (3) above;
(6) to the payment to the Investment Manager of, first, the current Investment Management Fee in accordance with the terms of the Investment Management Agreement and, then, any accrued and previously unpaid Investment Management Fee; and
(7) the balance of Interest Proceeds to the Borrower for distribution to the Equity Owner as a dividend payment thereon or as a final distribution in redemption thereof, as applicable.
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