Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent. (a) In connection therewith, the Collateral Agent shall: (i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source); (iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor; (iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a); (v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender; (vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time; (vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format; (viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and (ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request. (b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions. (c) In addition to the above: (i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder. (ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action. (iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent. (d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 6 contracts
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Owl Rock Capital Corp III)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All tangible Collateral Agent shall:
(i) within 15 days after the Effective Date, create a except Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may possession of Backup Servicer or Agent) will at all times be invested from time to time, as provided in this Agreement (kept by Borrower or Servicer at the “Collateral Database”);
(ii) update the Collateral Database locations set forth on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponSchedule 5.17B hereto, and shall not, without thirty (30) calendar days prior written notice to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agentbe moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant hereby agrees to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances deliver to the Agent and Backup Servicer or, upon the Collateral Manager upon request.
(b) The Collateral Agent shall provide request of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rightssuch Advance shall, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any regardless of their respective rights hereunderlocation, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, shall have the execution or filing by right upon reasonable notice, at any time during normal business hours, in the Collateral name of Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any designee of Agent or Borrower, to verify the Collateral Obligations now existing validity, amount or hereafter arisingany other matter relating to the Collateral. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party to Leases held by Borrower that their Leases have been assigned to Agent and to collect such other instruments or noticesLeases directly in Agent’s own name, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of itself and the Secured Parties) in the CollateralLenders, and to charge collection costs and expenses, including attorney’s fees, to file financing Borrower.
(b) As and continuation statements when determined by Agent in respect its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower, Servicer and Holdings: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower, Servicer or Holdings is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets.
(c) Borrower shall keep accurate and complete records of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral payments and collections thereon and shall submit such records to Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The on such periodic basis as Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral AgentPermitted Discretion.
(d) If, in performing its duties under this Agreement, In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Law, Borrower shall deliver to Agent is or, at the request of Agent, Servicer (i) the original Portfolio Documents; and (ii) originals or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which shall be delivered, at Borrower’s expense, to decide between alternative courses Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of action, the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent may request written instructions from the Agent as to the course control of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act transferable electronic record in accordance with instructions received after Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such two Business Day period Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the extent it has alreadycontrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in good faithits sole discretion, taken may elect for the Servicer or committed itself Backup Servicer or any other agent to takeaccept delivery of and maintain possession, action inconsistent with custody, and control of all such instructionsdocuments and any instruments on behalf of Agent during such period of time. The Collateral Agent Borrower shall be entitled identify (or cause any applicable servicing agent to rely identify) on the advice related electronic record the pledge of legal counsel and independent accountants in performing its duties hereunder and shall be deemed such Lease by Borrower to have acted in good faith if it acts in accordance with such adviceAgent.
(e) Concurrently herewithBorrower hereby agrees to, and to cause Servicer to, take the Agent directs following protective actions to prevent destruction of records pertaining to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Collateral Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent is hereby authorized at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to enter into Agent at all times) shall have the Account Control Agreement right to access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other related agreements in the form delivered information relating to the Collateral Agent. For the avoidance of doubtPortfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, all of the Collateral Agent’s rightswithout limitation, protections diskettes, tapes and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement other computer software and any other related agreements in such capacitycomputer systems.
Appears in 4 contracts
Sources: Loan and Security Agreement (Katapult Holdings, Inc.), Loan and Security Agreement (FinServ Acquisition Corp.), Loan and Security Agreement (Katapult Holdings, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, All Collateral (except proceeds of Accounts which shall be deposited with the Lockbox Banks) and records supporting the Collateral Agent shall:
(i) within 15 will at all times be kept by Borrower at the locations set forth on Schedule 7.18B hereto and shall not, without thirty calendar days after the Effective Dateprior written notice to Lender, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponmoved therefrom, and to in any case shall not be moved outside the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestcontinental United States.
(b) The Collateral Agent Borrower shall provide keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request. In addition, if Accounts of Borrower in an aggregate face amount in excess of $100,000.00 become ineligible because they fall within one of the Collateral Manager specified categories of ineligibility set forth in the definition of Eligible Accounts, Borrower shall notify Lender of such occurrence within two Business Days following the discovery of such occurrence or upon any submission to Lender of a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Borrowing Certificate and the Borrowing Base shall thereupon be adjusted to reflect such occurrence.
(c) Whether or not an Event of Default has occurred, any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable notice, in the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other Collateral held hereunder which it receives from matter relating to any Collateral. Notwithstanding the related Obligorforegoing, participating bank and/or agent bankso long as no Default or Event of Default has occurred and is continuing, Lender agrees to give Borrower at least seven (7) business days’ written notice of such visit to Borrower’s offices. In no Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) Borrower shall endeavor in the first instance to make collection of its Accounts for Lender. Lender shall have the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to right at all times after the occurrence and during the continuance of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
notify (i) The Agent and each Secured Party further authorizes the Collateral Agent Account Debtors owing Accounts to take such action as agent on its behalf Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to exercise collect such powers under this Agreement Accounts directly in its own name and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof charge collection costs and thereofexpenses, together with such powers as are reasonably incidental thereto. In furtheranceincluding reasonable attorney’s fees, to Borrower, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agentii) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) Medicaid/Medicare Account Debtors that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that has waived any and all actions performed defenses and counterclaims they may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility collateral assignment or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any and Lien of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent Lender in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and Lien of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might Lender in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed all Accounts and other Collateral payable by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceMedicaid/Medicare Account Debtors.
(e) Concurrently herewithAs and when determined by Lender in its Permitted Discretion, Lender will perform the searches described in clauses (i), (ii) and (iii) below against Borrower and Guarantor (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of Borrower and Guarantor and, if deemed necessary by Lender, the Agent directs Secretary of State and local filing offices of each jurisdiction where Borrower or Guarantor maintain their respective executive offices, a place of business or assets; (ii) Lien searches with the Collateral Agent United States Patent and Trademark Office and the Collateral Agent is hereby authorized United States Copyright Office; and (iii) judgment, federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice to enter into the Account Control Agreement its current bank to transfer all items, collections and any other related agreements in the form delivered remittances to the Concentration Account, (ii) shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such notices and directions within ten calendar days after the Closing Date (or ten calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to create and perfect Lender’s Lien on any Collateral Agent. For and effectuate the avoidance of doubt, all intentions of the Loan Documents. At Lender’s request, Borrower shall immediately deliver to Lender all Collateral Agent’s rights, protections and immunities provided herein shall apply for which Lender must receive possession to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacityobtain a perfected security interest.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Neogenomics Inc), Revolving Credit and Security Agreement (Neogenomics Inc), Revolving Credit and Security Agreement (Neogenomics Inc)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll Collateral (except Deposit Accounts) will at all times be kept by Borrower at the locations set forth on Schedule 5.18B hereto and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom unless Lender has entered into the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect necessary documents to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time perfect and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponenforce its security interest therein at such new location, and to in any case shall not be moved outside the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestcontinental United States.
(b) The Collateral Agent Borrower shall provide keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request. In addition, if Accounts of Borrower in an aggregate face amount in excess of $30,000 become ineligible because they fall within one of the Collateral Manager a copy specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. Following the occurrence and during the continuance of an Event of Default, if requested by Lender, Borrower shall execute and deliver to Lender formal written assignments (or, in the case of Medicaid/Medicare Account Debtors, documents necessary to comply with the Federal Assignment of Claims Act) of all written notices and communications identified of its Accounts weekly or daily as being sent to it in connection with Lender may request, including all Accounts created since the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf date of the Collateral Manager in respect last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned accounts exceed the amount of the exercise Obligations, such excess amount shall not accrue interest in favor of Borrower, but shall be available to Borrower upon Borrower’s written request.
(c) Following an occurrence or during the continuance of an Event of Default, any voting of Lender’s officers, employees, representatives or consent rightsagents shall have the right, at any time during normal business hours, in the name of Lender, any designee of Lender or similar actionsBorrower, unless it receives specific written instructions from to verify the Collateral Managervalidity, prior amount or any other matter relating to any Accounts or Inventory of Borrower. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the first instance to make collection of its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify (i) Account Debtors owing Accounts to Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorney’s fees, to Borrower, and (ii) Medicaid/Medicare Account Debtors that Borrower has waived any and all defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the collateral assignment or security interest and lien of Lender in and to any Account or other Collateral Manager Event and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and lien of Default or the Agent, after the occurrence of an Event of Default or a Lender in and to all Accounts and other Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionspayable by Medicaid/Medicare Account Debtors.
(ce) In addition to the above:
(i) The Agent As and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent when determined by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might Lender in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it sole discretion but not more often than four (x4) unless and until (and to the extent) expressly so directed by the Agent or (y) times per year prior to the Facility Termination Date (occurrence and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions continuance of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer Lender will perform the searches described in clauses (i) and (ii) below against Borrower (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State of the Collateral Agent has knowledge jurisdiction of such matter organization of each Borrower and Guarantor and the Secretary of State and local filing offices of each jurisdiction where each Borrower and/or any Guarantors maintain their respective executive offices, a place of business or written notice thereof is received by assets; (ii) lien searches with the Collateral AgentUnited States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(df) IfBorrower (i) shall provide prompt written notice to its current bank to transfer all items, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as collections and remittances to the course of action desired by it. If the Collateral Agent does not receive Concentration Account, (ii) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that Lender has been granted a lien and security interest in, upon and to all Accounts applicable to such instructions within two Business Days after it has requested them, the Collateral Agent may, but Account Debtor and shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except direct each Account Debtor to make payments to the extent it has alreadyappropriate Lockbox Account, in good faithand Borrower hereby authorizes Lender, taken upon any failure to send such notices and directions within ten (10) calendar days after the date of this Agreement (or committed itself ten (10) calendar days after the Person becomes an Account Debtor), to takesend any and all similar notices and directions to such Account Debtors, action inconsistent with such instructionsand (iii) shall do anything further that may be lawfully required by Lender to create and perfect Lender’s lien on any collateral and effectuate the intentions of the Loan Documents. The Collateral Agent At Lender’s request, Borrower shall be entitled immediately deliver or make arrangements to rely on the advice deliver to Lender all items for which Lender must receive possession to obtain a perfected security interest and all notes, certificates, and documents 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) Concurrently herewithtitle, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement Chattel Paper, warehouse receipts, Instruments, and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacitysimilar instruments constituting Collateral.
Appears in 3 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (NationsHealth, Inc.), Revolving Credit and Security Agreement (NationsHealth, Inc.), Revolving Credit, Term Loan and Security Agreement (NationsHealth, Inc.)
Collateral Administration. The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Servicer, the Collateral ManagerAgent, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Borrower, the Collateral Manager Servicer or the Agent as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide commencing five (5) Business Days after the Effective Date, make available to the Collateral Manager Servicer and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report which can be reasonably prepared to the Agent or the Collateral Manager Servicer upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver make available to the Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Agent or any Lender;
(viv) provide such other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ixvi) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager Servicer upon request.
(b) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Agent, the Document Custodian nor the Collateral Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default, subject to Section 13.3(b), in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions. In the absence of such instructions, no action will be taken.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting solely at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (solely at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, neither the Collateral Agent nor the Collateral Administrator shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Neither the Collateral Agent nor the Collateral Administrator shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent and the Collateral Administrator shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent or Collateral Administrator has actual knowledge of such matter or written notice thereof is received by a Responsible Officer of the Collateral AgentAgent or Collateral Administrator.
(d) If, in performing its duties under this Agreement, the Collateral Agent or the Collateral Administrator is required to decide between alternative courses of action, the Collateral Agent or the Collateral Administrator, as the case may be, may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent or the Collateral Administrator, as the case may be, does not receive such instructions within two Business Days after it has requested them, the Collateral Agent or the Collateral Administrator, as the case may be, may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent or the Collateral Administrator, as the case may be, shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent and 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other Transaction Documents or related agreements in such capacity.
(f) The parties acknowledge that in accordance with laws, regulations and executive orders of the United States or any state or political subdivision thereof as are in effect from time to time applicable to financial institutions relating to the funding of terrorist activities and money laundering, including without limitation the USA Patriot Act and its implementing regulations, the Collateral Agent, Collateral Administrator and Document Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent, Collateral Administrator and Document Custodian. The parties hereby agree that it shall provide the Collateral Agent, Collateral Administrator and Document Custodian with such information as it may reasonably request including, but not limited to, such parties’ name, physical address, tax identification number and other information that will help the Collateral Agent, Collateral Administrator and Document Custodian to identify and verify the identities of such Borrower such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, All Collateral (except proceeds of Accounts which shall be deposited with the Lockbox Banks) and records supporting the Collateral Agent shall:
(i) within 15 will at all times be kept by Borrower at the locations set forth on Schedule 7.18B hereto and shall not, without thirty calendar days after the Effective Dateprior written notice to Lender, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponmoved therefrom, and to in any case shall not be moved outside the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestcontinental United States.
(b) The Collateral Agent Borrower shall provide keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic bases as Lender may request. In addition, if Accounts of Borrower in an aggregate face amount in excess of $25,000.00 become ineligible because they fall within one of the Collateral Manager specified categories of ineligibility set forth in the definition of Eligible Accounts, Borrower shall notify Lender of such occurrence within two Business Days following the discovery of such occurrence or upon any submission to Lender of a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Borrowing Certificate and the Borrowing Base shall thereupon be adjusted to reflect such occurrence.
(c) Whether or not an Event of Default has occurred, any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours upon reasonable notice, in the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other Collateral held hereunder which it receives from matter relating to any Collateral. Notwithstanding the related Obligorforegoing, participating bank and/or agent bankso long as no Default or Event of Default has occurred and is continuing, Lender agrees to give Borrower at least seven (7) business days’ written notice of such visit to Borrower’s offices. In no Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) Borrower shall endeavor in the first instance to make collection of its Accounts for Lender. Lender shall have the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to right at all times after the occurrence and during the continuance of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
notify (i) The Agent and each Secured Party further authorizes the Collateral Agent Account Debtors owing Accounts to take such action as agent on its behalf Borrower other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to Lender and to exercise collect such powers under this Agreement Accounts directly in its own name and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof charge collection costs and thereofexpenses, together with such powers as are reasonably incidental thereto. In furtheranceincluding reasonable attorney’s fees, to Borrower, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agentii) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) Medicaid/Medicare Account Debtors that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that has waived any and all actions performed defenses and counterclaims they may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility collateral assignment or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any and Lien of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent Lender in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and Lien of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might Lender in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed all Accounts and other Collateral payable by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceMedicaid/Medicare Account Debtors.
(e) Concurrently herewithAs and when determined by Lender in its Permitted Discretion, Lender will perform the searches described in clauses (i), (ii) and (iii) below against Borrower and Guarantor (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), all at Borrower’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of Borrower and Guarantor and, if deemed necessary by Lender, the Agent directs Secretary of State and local filing offices of each jurisdiction where Borrower or Guarantor maintain their respective executive offices, a place of business or assets; (ii) Lien searches with the Collateral Agent United States Patent and Trademark Office and the Collateral Agent is hereby authorized United States Copyright Office; and (iii) judgment, federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice to enter into the Account Control Agreement its current bank to transfer all items, collections and any other related agreements in the form delivered remittances to the Concentration Account, (ii) shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and Borrower hereby authorizes Lender, upon any failure to send such notices and directions within ten calendar days after the Closing Date (or ten calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to create and perfect Lender’s Lien on any Collateral Agent. For and effectuate the avoidance of doubt, all intentions of the Loan Documents. At Lender’s request, Borrower shall immediately deliver to Lender all Collateral Agent’s rights, protections and immunities provided herein shall apply for which Lender must receive possession to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacityobtain a perfected security interest.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Neogenomics Inc), Revolving Credit and Security Agreement (Neogenomics Inc), Revolving Credit and Security Agreement (Neogenomics Inc)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Administrative Agent and the Lender Agents Lenders certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents Lenders and/or the Administrative Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Collateral Report in accordance with Section 8.3(a)8.3;
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Collateral Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral, provided that such Collateral granted to the Collateral Agent and has not released been released, as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral Agent’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), and so long as the Collateral Agent maintains or has received any information reasonably requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and (iii) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer and the Administrative Agent a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Administrative Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent (who shall promptly, but in no event later than the following second Business Day, deliver notice thereof to the Administrative Agent).
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Amendment No. 5 (HMS Income Fund, Inc.), Amendment No. 3 (HMS Income Fund, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.311.311.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 7.77.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 8.58.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 3.43.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e)6.2(e)6.2(e) , in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.107.107.10 ) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A7.107.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i11.3(c)(i)11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.110.110.
1 . It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i)Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp), Loan and Servicing Agreement (Blue Owl Capital Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All Collateral Agent shall:
(i) within 15 days after the Effective Date, create a except Deposit Accounts and Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may possession of Agent) will at all times be invested from time to time, as provided kept by Borrower at the locations set forth on Schedule 5.18B hereto unless in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included transit between such locations in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponordinary course of business, and shall not, without ten (10) Business Days prior written notice to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant be moved therefrom (other than to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and another such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Daylocation), and in any case shall not be moved outside the Collateral Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bankcontinental United States. In no instance shall the Collateral Agent be under any duty Whether or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of not an Event of Default has occurred, any of the Agent's officers, employees, representatives or a Collateral Manager agents shall have the right, at any time during normal business hours, and, if no Event of Default or is then continuing, upon reasonable notice, in the name of Agent, after any designee of Agent, or Borrower, to verify the occurrence of an Event of Default validity, amount or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such any other action in accordance with such instructions.
(c) In addition matter relating to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunderCollateral, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.16.7(b), periodic inventory appraisals; provided, however, that no such notice shall be required after the occurrence and during the continuation of an Event of Default. It is understood and agreed that any and all actions performed by the Collateral Borrower shall cooperate fully with Agent in connection with this Section 11.3(c)(i) shall be at the written direction an effort to facilitate and promptly conclude such verification process or inventory appraisals. In addition to and notwithstanding any provision of the Agentany Loan Document, and the Collateral Agent shall have no responsibility or liability the right at all times after the occurrence and during the continuance of an Event of Default to notify Persons owing Accounts to Borrower that their Accounts have been assigned to Agent and to collect such Accounts directly in connection with determining any actions necessary or desirable its own name and to perfectcharge collection costs and expenses, protect or more fully secure the security interest granted by the Borrower hereunder or including reasonable attorney's fees, to enable any Person to exercise or enforce any of their respective rights hereunderBorrower.
(b) As and when determined by Agent in its Permitted Discretion, Agent will be entitled to perform the searches described in clauses (i) and (ii) The Agent may direct below against Borrower at Borrower's expense: (i) UCC searches with the Collateral Agent Secretary of State and local filing offices of each jurisdiction where Borrower and any Guarantor, if any, is organized; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in writing to take any such incidental action hereundereach jurisdiction searched under clause (i) above. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Borrower shall not only be required to pay for four (4) such searches in any twelve-month period; provided, however, that no such limits shall apply if a Default or Event of Default has occurred and is continuing or Borrower has requested (i) Agent's or Lenders' consent or approval to some matter, or (ii) Agent or Lenders to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take taking any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iiic) Except as expressly provided hereinUpon Agent's request, Borrower shall promptly deliver to Agent all items for which Agent must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case with a value, individually or in the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any poweraggregate, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrenceexcess of $25,000, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, each case to the extent that this Agreement provides such Secured Party not already in the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge possession of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon. If requested by Agent is required upon or at any time after the occurrence and during the continuation of an Event of Default, Borrower shall execute and deliver to decide between alternative courses Agent formal written assignments of action, the Collateral all of its Accounts as Agent may request written instructions request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the Agent as to amount of the course Obligations, such excess amount shall not accrue interest in favor of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, Borrower but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act available to Borrower upon written request in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice terms 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 advicethis Agreement.
(e) Concurrently herewithBorrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account, and Borrower hereby authorizes Agent directs and/or Lenders, upon any failure to send such directions within thirty (30) calendar days after the Collateral Agent date of this Agreement or thirty (30)calendar days after the Person becomes an Account Debtor, to send any and the Collateral Agent is hereby authorized all similar notices and directions to such Account Debtors, and (iii) shall cause each credit card processor which processes credit card payments made by Borrower's customers to enter into the Account Control Credit Card Processor Agreements, and Borrower hereby authorizes Agent and/or Lenders, upon any failure by Borrower to enter into any Credit Card Processor Agreements as required pursuant to this Agreement to send notices and any other related agreements in the form delivered directions to such credit card processors instructing them to make payment only to the Collateral Blocked Account or Concentration Account, as determined by Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Redenvelope Inc), Revolving Credit and Security Agreement (Redenvelope Inc)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All tangible Collateral Agent shall:
(i) within 15 days after the Effective Date, create a except tangible Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may possession of Backup Servicer ) will at all times be invested from time to time, as provided in this Agreement (kept by Issuer or Servicer at the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements locations set forth in Section 6.2(e)5.15 of Schedule A attached hereto, and shall not, without thirty (30) calendar days prior written notice to Administrative Agent and Collateral Agent, be moved therefrom other than to another such location, and in each caseany case shall not be moved outside the continental United States. All Receivables constituting Collateral, based upon information contained in the Collateral Database and report the results thereof shall, regardless of their location, be deemed to the Collateral Manager in a mutually agreed format;
(viii) upon the be under Collateral Agent’s receipt on dominion and control and deemed to be in Collateral Agent’s possession. In addition to any Business Day provision of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligationsany Transaction Document, the Collateral Agent shall perform, within three hours have the right at all times after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on occurrence and during the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence continuance of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The to notify Account Debtors and/or Servicer that all Receivables of Issuer including, if to Account Debtors, their Receivables have been assigned to Collateral Agent and each Secured Party further authorizes the Collateral Agent to take that all collections from such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) Receivables shall be deemed paid directly to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (Agent, for the benefit of the Secured Parties, and (ii) in the Collateralto charge Issuer for any collection costs and expenses, including reasonable attorney’s fees, incurred by Collateral Agent.
(b) As and when determined by Administrative Agent in its sole discretion, Administrative Agent will perform the searches described in clauses (i) and (ii) below against Issuer, Holdings, and Originators: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where any such Person is organized; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where any such Person maintains their executive offices, a place of business or any assets.
(c) Issuer shall, or shall require Servicer to, keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit to file financing Administrative Agent and Collateral Agent such records on such periodic basis as Administrative Agent or Collateral Agent may request in their reasonable discretion.
(d) Issuer shall, or shall require Servicer to, upon the receipt of written notice from Administrative Agent following the occurrence and continuation statements of an Event of Default, cooperate with Administrative Agent, if Administrative Agent elects to attach or associate in electronic format a legend, stamp, notation or other identification to all or any portion of the Portfolio Documents to evidence the pledge thereof to Collateral Agent, such legend, stamp, notation or other identification shall be in form and substance acceptable to Administrative Agent in its sole discretion.
(e) In respect of the portion of the Collateral consisting of any Receivable which is evidenced by an electronic record that is a “transferable record” as defined in Section 16 of the Uniform Electronic Transactions Act (as in effect in any relevant jurisdiction), Issuer shall, or shall require each Servicer to, deliver to Collateral Agent the control of such transferable electronic record in accordance with Section 10.1. It is understood and agreed Applicable Law, including the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction (to ensure, among other things, that any and all actions performed by the Collateral Agent has a first priority perfected Lien in connection with this Section 11.3(c)(i) such Collateral), which shall be delivered, at Issuer’s expense, to Collateral Agent at its address as set forth herein or as otherwise specified by Collateral Agent and, except as otherwise expressly provided herein to the contrary, held in Collateral Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Administrative Agent expressly agrees to release such documents. Alternatively, Collateral Agent, at the written direction of the Administrative Agent, may elect for the Servicer, Originator or any other agent to accept delivery of and the maintain possession, custody, and control of all such documents and any instruments on behalf of Collateral Agent during such period of time. Issuer shall have no responsibility identify (or liability in connection with determining any actions necessary or desirable shall cause Originators and/or Servicer to perfect, protect or more fully secure identify) on the security interest granted by related electronic record the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking pledge of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary Receivable by Issuer to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(df) IfIssuer hereby agrees to, in performing its duties and shall require Enova, Holdings, Originator, any purchaser under this Agreementa Transfer Agreement and/or Servicer, to take all applicable protective actions to prevent destruction of records pertaining to the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except each Servicing Agreement. Subject to the extent it has already, limitations set forth in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice Section 6.7 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) Concurrently herewith, the Agent directs the Collateral Agent this Agreement and the Collateral Backup Servicing Agreement, as applicable, Administrative Agent is hereby authorized at all times shall have the right to enter into the Account Control Agreement access and review any and all Portfolio Documents in Issuer’s, Backup Servicer’s, Originator’s and/or Servicer’s possession and any and all data and other related agreements in the form delivered information relating to the Collateral Agent. For the avoidance of doubtPortfolio Documents as may from time to time be input to or stored within Issuer’s, all of the Collateral AgentBackup Servicer’s, Originator’s rightsor Servicer’s computers and/or computer records including, protections without limitation, diskettes, tapes and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement other computer software and any other related agreements in such capacitycomputer systems.
Appears in 2 contracts
Sources: Note Issuance and Purchase Agreement (Enova International, Inc.), Note Issuance and Purchase Agreement (Enova International, Inc.)
Collateral Administration. The (a) All Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide (except deposit accounts) will at all times be kept by Borrower at its principal office(s) or at such other locations as identified to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculationsLender, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e)on SCHEDULE 4.15 and shall not, in each casewithout at least thirty (30) days notice to Lender, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestmoved therefrom.
(b) The Collateral Agent Borrower shall provide keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall reasonably request a collections report for the Collateral Manager a copy preceding period, in form reasonably satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of all written notices and communications identified as being sent to it $50,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in connection with the Collateral Obligations definition of Qualified Accounts, Borrower shall notify Lender of such occurrence on the first Business Day following the date on which Borrower first becomes aware of such occurrence, and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bankBorrowing Base shall thereupon be adjusted to reflect such occurrence. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to After the occurrence and during the continuance of an Event of Default Default, if requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all of its Accounts weekly or a Collateral Manager daily, which shall include all Accounts that have been created since the date of the last assignment, together with copies of claims, invoices or other information related thereto.
(c) After an Event of Default has occurred, and while it is continuing, any of Lender's officers, employees or agents shall have the Agentright, at any time or times thereafter, in the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Accounts by mail, telephone, telegraph or otherwise. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the first instance to make collection of its Accounts for Lender. Lender retains the right at all times after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only votesubject to applicable laws regarding Medicaid/Medicare Account Debtors, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent notify Account Debtors that Accounts have been assigned to take such action as agent on its behalf Lender and to exercise such powers under this Agreement collect Accounts directly in its own name and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof charge reasonable collection costs and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateralexpenses, including to file financing reasonable attorneys' fees (including both outside and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect theretoin-house counsel). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral AgentBorrower.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (Phymatrix Corp), Loan and Security Agreement (Phymatrix Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent except for the benefit of the Secured Parties from time to time, comprised of the Lockbox Account and Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may possession of Custodian) will at all times be invested from time to time, as provided in this Agreement (kept by Borrower at the “Collateral Database”);
(ii) update the Collateral Database locations set forth on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponSchedule 5.15 hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. To the extent ofnot already delivered, information furnished Borrower hereby agrees to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, Custodian the Custodian Deliverables related to each Lender Agent, Pledged Receivable to be pledged in connection with the Borrower and the Collateral Manager Initial Advance on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided prior to the Collateral Agent by the BorrowerClosing Date or within five (5) Business Days prior to any Transfer Date in connection with any subsequent Advance, the Collateral Manageras applicable. All Pledged Receivables shall, the regardless of their location, be deemed to be under Agent, any Lender Agent or any Lender;
’s dominion and control (viwith files so labeled) provide other such information with respect and deemed to be in Agent’s possession. Subject to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements limitations set forth in Section 6.2(e)6.18 hereof, any of Agent’s officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Agent or any designee of Agent or Borrower, to verify the validity, amount or any other matter relating to the Collateral.
(b) As and when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower is organized and/or maintains their executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each case, based upon information contained in the Collateral Database and report the results thereof jurisdiction searched under clause (i) above.
(c) Whether delivered pursuant to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other document delivery requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained 4.1 in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results relation to the Collateral Manager Closing or Section 4.2 in connection with any Advance, as applicable, or to the extent not previously delivered in connection with any Pledged Receivable, Borrower shall, in relation to each Pledged Receivable, deliver to Agent or Custodian all items that Agent or Custodian must receive possession of to obtain a mutually agreed formatperfected Lien and security interest, including all Timeshare Documents, Timeshare Collateral, any other Custodian Deliverables, in each case to the extent not already in possession of Agent or Custodian;
(d) If not delivered in connection with an Advance, except in connection with Aruba Receivables, within ninety (90) days of the date of any Advance, Borrower shall deliver to Custodian a mortgagee final original lender’s title insurance policy (which may consist of one master policy referencing one or more Timeshare Mortgages) showing no exceptions to coverage (other than Permitted Liens) consistent with the title insurance commitment delivered to Custodian in connection with such Pledged Receivable prior to such Advance, which title insurance policy must insure that the applicable Timeshare Mortgage creates, subject to Permitted Liens, a first priority lien in and to the financed Vacation Ownership Interest insuring Borrower and its successors and/or assigns; and
(ixe) track the Principal Balance of each Collateral Obligation Borrower shall, or shall cause Servicer to, keep accurate and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf complete records of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior and all payments and collections thereon and shall submit such records to Agent on such periodic basis as required pursuant to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionsServicing Agreement.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Bluegreen Vacations Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format[reserved];
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format[reserved]; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower each Loan Party hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove; provided, however, that the Collateral Agent shall have no duty or obligation to prepare or file any such financing or continuation statement and such obligation shall remain with the Borrower. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower each Loan Party hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.), Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the each Agent and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager and any Agent upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)8.3;
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower Borrower, any Agent or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any LenderAgent;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender Agent may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after no later than the Business Day following the Collateral Agent’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)) and the Collateral Agent maintains or has received any information reasonably requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;; and
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A7.10(i)(A), (B) and (C) and (iii) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and.
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to at any time when an Event of Default or a Servicer Default is not continuing or the occurrence Facility Agent, during the continuance of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent, in the absence of its own bad faith, fraud, gross negligence, willful misconduct or reckless disregard. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants selected with due care in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(e) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into (i) the Account Control Agreement Agreement, (ii) the consent in connection with the Merger and (iii) any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All Collateral Agent shall:
(iexcept deposit accounts) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may will at all times be invested from time to time, as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided kept by each Lender Agent and the Agent pursuant to Section 3.4 and such other information Borrower at its principal office(s) as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e)on Exhibit C hereto and shall not, in each casewithout the prior written approval of Lender, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestmoved therefrom.
(b) The Collateral Agent Each Borrower shall provide keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender sales and collections reports with respect thereto as required by Section 6.1 hereof. In addition, if Borrower becomes aware that Accounts in an aggregate face amount in excess of $100,000.00 have become ineligible since the Collateral Manager a copy date of all written notices and communications identified as being sent to it Borrowers' last Borrowing Base Certificate because they fall within one of the specified categories of ineligibility set forth in connection with the Collateral Obligations definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following Borrowers' knowledge of such occurrence and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance Borrowing Base shall the Collateral Agent thereupon be under any duty adjusted to reflect such occurrence.
(c) Whether or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of not an Event of Default has occurred, any of Lender's officers, employees or a Collateral Manager Event agents shall have the right, at any time or times hereafter, in the name of Default Lender, any designee of Lender or Borrowers, to verify the Agentvalidity, amount or any other matter relating to any Accounts by mail, telephone, telegraph or otherwise. Borrowers shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, each Borrower shall endeavor in the first instance to make collection of its Accounts for Lender. Lender retains the right at all times after the occurrence of an Event of Default or (other than a Collateral Manager Limited Event of Default), in which event the Collateral Agent shall only votesubject to applicable law regarding Medicaid/Medicare Account Debtors, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent notify Account Debtors that Accounts have been assigned to take such action as agent on its behalf Lender and to exercise such powers under this Agreement collect Accounts directly in its own name and to charge the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof collection costs and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateralexpenses, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Partyattorneys' fees, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral AgentBorrowers.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (Newcare Health Corp), Loan and Security Agreement (Retirement Care Associates Inc /Co/)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll Collateral will at all times be kept by Borrower at the locations set forth on the Perfection Certificate, the Collateral Agent Schedule 7.18B or Schedule 7.18C hereto, as may be updated from time to time in accordance with this Section 4.2. Borrower shall:
, (i) within 15 ten (10) calendar days after change of location of its chief executive offices, provide written notice to Lender and (ii) as soon as available and in any event within forty-five (45) calendar days after the Effective Date, create a Collateral database with respect to end of each calendar quarter (or within sixty (60) calendar days after the Collateral that has been pledged to the Collateral Agent for the benefit end of the Secured Parties from time to timelast calendar quarter), comprised of provide Lender with the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and updated Schedule 7.18B and/or Schedule 7.18C to the extent of, information furnished to applicable; provided that no Collateral shall be moved outside the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any continental United States without Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestprior consent.
(b) The Collateral Agent Borrower shall provide to the Collateral Manager a copy maintain all of all written notices its primary deposit and communications identified as being sent to it operating and savings accounts with Lender, in connection accordance with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to Section 8.13.
(c) Upon the occurrence and during the continuance of an Event of Default, any of Lender’s officers, employees, representatives or agents shall have the right, at any time during normal business hours, in the name of Lender, any designee of Lender or Borrower, to verify the validity, amount or any other matter relating to any Collateral. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) Borrower shall endeavor in the first instance to make collection of its Accounts for Lender. Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
notify (i) The Agent and each Secured Party further authorizes the Collateral Agent Account Debtors owing Accounts to take such action as agent on Borrower that its behalf Accounts have been assigned to Lender and to exercise collect such powers under this Agreement Accounts directly in its own name and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof charge collection costs and thereofexpenses, together with such powers as are reasonably incidental thereto. In furtheranceincluding reasonable attorney’s fees, to Borrower, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agentii) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) Account Debtors that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that has waived any and all actions performed defenses and counterclaims it may have or could interpose in any such action or procedure brought by Lender to obtain a court order recognizing the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility collateral assignment or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any and first priority Lien of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent Lender in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions Account or other Collateral and that Lender is seeking or may seek to obtain a court order recognizing the collateral assignment or security interest and first priority Lien of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might Lender in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed all Accounts and other Collateral payable by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceAccount Debtors.
(e) Concurrently herewithAs and when determined by Lender in its Permitted Discretion, Lender will perform the searches described in clauses (i), (ii) and (iii) below against Loan Parties (the results of which are to be consistent with Loan Parties’ representations and warranties under this Agreement), all at Loan Parties’ expense (but not more often than once during any 12 month period unless an Event of Default has occurred and is continuing): (i) UCC searches with the Secretary of State of the jurisdiction of organization of each Loan Party and, if deemed necessary by Lender, the Agent directs Secretary of State and local filing offices of each jurisdiction where any Loan Party maintains its executive offices, a place of business or assets; (ii) Lien searches with the Collateral Agent United States Patent and Trademark Office and the United States Copyright Office; and (iii) judgment, federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Each Loan Party shall use best efforts to do anything further that may be lawfully required by Lender to create and perfect Lender’s Lien on any Collateral Agent is hereby authorized to enter into and effectuate the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all intentions of the Loan Documents, in each case consistent with the Loan Documents. At Lender’s request, each Loan Party shall immediately deliver to Lender all Collateral Agent’s rights, protections and immunities provided herein shall apply for which Lender must receive possession to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacityobtain a perfected security interest.
Appears in 2 contracts
Sources: Revolving Credit, Delayed Draw Term Loan and Security Agreement (Sweetgreen, Inc.), Revolving Credit, Delayed Draw Term Loan and Security Agreement (Sweetgreen, Inc.)
Collateral Administration. The Collateral Agent shall maintain make available a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the BorrowerFacility Agent, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager Servicer, as applicable, upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)8.3;
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three four hours after the Collateral Agent’s receipt of such request (provided such request is received by 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)) and the Collateral Agent maintains or has received any information reasonably needed and requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(eSections 6.2(d) and (e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral ObligationsObligations and the Collateral Agent maintains or has received any information reasonably needed and requested by it, the Collateral Agent shall perform, within three four hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon p.m. (New York time) on such date (date, otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (BSection 7.10(d)(v) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer and the Facility Agent a copy of all written notices and communications received by it identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer or the Facility Agent in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Facility Agent, after the occurrence and during the continuation of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x))it. The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent in its capacity as Loan Registrar and for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll Collateral (except (x) Deposit Accounts and/or any Loan Clearing Account and (y) Collateral in the possession of Custodian) will at all times be kept by Borrower at the locations set forth on Schedule 5.18A hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Borrower hereby agrees to deliver, or cause to be delivered, to Custodian, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database Custodian Deliverables with respect to each Pledged Loan (other than as it relates to an Approved Syndicated Loan or Broadly Syndicated Loan) within five (5) Business Days after the Collateral that has been pledged related Borrowing Date. All Pledged Loans shall, regardless of their location, be deemed to be under Agent’s dominion and control (with files so labeled) and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents shall have the Collateral Agent for the benefit of the Secured Parties from right upon reasonable notice, at any time to timeduring normal business hours, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition name of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral designee of Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the or Borrower, to verify the Collateral Managervalidity, the Agent, any Lender Agent amount or any Lender may reasonably request from time other matter relating to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation including inventory appraisals. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process or inventory appraisals. In addition to and notwithstanding any provision of any Loan Document, Agent shall have the tests right at all times after the occurrence and other requirements set forth during the continuance of an Event of Default to notify any Person owing amounts pursuant to Pledged Loans that their Pledged Loan has been assigned to Agent and to collect such amounts directly in Section 6.2(e)its own name and to charge collection costs and expenses, in each caseincluding reasonable attorneys’ fees, based upon information contained to Borrower, provided, however, that Borrower shall endeavor in the Collateral Database and report the results thereof first instance to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt make collection of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestamounts for Agent.
(b) The Collateral As and when determined by Agent shall provide to in its sole discretion, Agent will perform the Collateral Manager a copy of all written notices searches described in clauses (i) and communications identified as being sent to it in connection (ii) below against Borrower: (i) UCC searches with the Collateral Obligations Secretary of State and the other Collateral held hereunder which it receives from the related Obligorlocal filing offices of each jurisdiction where Borrower are organized and/or maintain their executive offices, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty a place of business or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rightsassets; and (ii) judgment, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Defaultfederal tax lien and corporate and partnership tax lien searches, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionseach jurisdiction searched under clause (i) above.
(c) In addition Within five (5) Business Days after the applicable Borrowing Date, Borrower shall deliver, or cause to be delivered, to Agent or Custodian any Attached Equity Interests and all items of Collateral that Agent must receive possession of to obtain a first-priority perfected Lien in such Collateral to the above:extent not already in the possession of Agent or Custodian.
(d) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request in its sole discretion. If requested by Agent upon or at any time after the occurrence and during the continuation of an Event of Default, Borrower shall execute and deliver to Agent, formal written assignments of all of its Pledged Loans as Agent may request, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Pledged Loans exceed the amount of the outstanding Obligations, upon confirmation by Agent of such excess amount and so long as no Default or Event of Default has occurred and is continuing, such excess amount shall be refunded to Borrower upon written request in accordance with the terms of this Agreement.
(e) Borrower hereby agrees to take the following protective actions to prevent destruction of records pertaining to Borrower’s Collateral: (i) The Agent if Borrower maintains its Collateral records on a manual system, such records shall be kept in a fire proof room or on no less than thirty (30) calendar days following the end of each calendar month, a record of all payments on Pledged Loans and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the all other Transaction Documents as are expressly delegated matters relating to the Collateral shall be placed in an off-site safety deposit box (and Agent shall have access to such safety deposit box); or (ii) if the Collateral records are computerized, Borrower agrees to create an electronic “back-up” of the computerized information and to provide Agent monthly with an electronic copy of such “back-up” information (A) prior to the Closing Date and (B) no later than thirty (30) days following the end of each calendar month following the Closing Date.
(f) Promptly upon learning of the anticipated payment in full of any Pledged Loan, Borrower shall give written notice thereof to Agent. Within two (2) Business Days after the actual payment in full of any Pledged Loan and delivery of the proceeds thereof to the applicable Loan Clearing Account or the Blocked Account (as applicable) in accordance with Section 2.4 hereof, Borrower shall give written notice thereof to Agent and Custodian of such payment.
(g) Notwithstanding anything set forth herein to the contrary, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then upon Agent’s receipt of (i)(A) a written request for the release of Agent’s Lien on any Pledged Loan, (B) unless otherwise agreed to in writing by Agent in its sole discretion, evidence acceptable to Agent that such Pledged Loan is being sold to a third-party, non-Affiliate of Borrower on an arms-length basis for which purchase no Affiliate of Borrower is providing seller financing in connection with such sale and (C) receipt of payment (or payment into escrow pursuant to a mechanism acceptable to Agent) of an amount equal to (x) 100% of the net proceeds of the sale of such Pledged Loan plus (y) the amount required (if any) to cause borrower to be in compliance with Section 2.6 hereof following the release of such Pledged Loan, Agent shall, promptly, at Borrower’s cost and expense, deliver to Borrower (I) any Collateral relating to such Pledged Loan and (II) Borrower-prepared release, satisfaction, discharge and/or termination agreements or similar instruments or filings in relation to such related Collateral and any other UCC or similar filings made by Agent in relation thereto, in form and substance reasonably satisfactory to Agent; and/or (ii)(A) written notice from Borrower that any Loan Clearing Account that was previously a “Borrower Loan Clearing Account” has become a “Syndicated Loan Clearing Account” and (B) an updated schedule to the Borrower Loan Clearing Account Agreement reflecting the removal of such Loan Clearing Account from the Borrower Loan Clearing Account Agreement, Agent shall, promptly, at Borrower’s cost and expense, deliver to Borrower an acknowledged copy of such updated schedule to the Borrower Loan Clearing Account Agreement. Upon the request of Borrower, Agent agrees to provide a payoff letter, in form and substance acceptable to Agent, for the release of Agent’s Lien on any such Pledged Loan, subject to the terms hereof and thereof, together with conditions of this clause (g). Borrower shall bear the responsibility of recording any such powers as are reasonably incidental thereto. In furtherance, documents delivered pursuant to this clause (g) and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent shall bear all out-of-pocket expenses (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral legal fees and disbursements of Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(iLender) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with any such payoff letter, supplemental schedule, release, reassignment and delivery delivered pursuant to this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunderclause (g).
(iih) The Agent may direct Without limiting the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting foregoing (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such actionfurtherance thereof), in the determination of the Collateral event any Syndicated Loan Clearing Account becomes a Borrower Loan Clearing Account, Borrower shall deliver to Agent (or cause Administrator to deliver to Agent), within ten (x10) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such requestDays, then the Agent shall be deemed to have declined to consent an updated schedule to the relevant action.
Borrower Loan Clearing Account Agreement (iiiacknowledged by Agent) Except reflecting such Borrower Loan Clearing Account (or such other document, instrument, or agreement as expressly provided hereinis necessary to perfect Agent’s Lien thereon and provide Agent control of, the Collateral in each case in form and substance acceptable to Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (xsole discretion)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (Harvest Capital Credit Corp), Loan and Security Agreement (Harvest Capital Credit Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All Collateral Agent shall:
(iexcept deposit accounts) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may will at all times be invested from time to time, kept by Borrower at its principal office(s) as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e)on Exhibit C hereto and shall not, in each casewithout the prior written approval of Lender, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestmoved therefrom.
(b) The Collateral Agent Borrower shall provide keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the Collateral Manager a copy preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $50,000.00 that were previously included in the Borrowing Base become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all written notices and communications identified as being sent to it in connection with of its Accounts weekly or daily, which shall include all Accounts that have been created since the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf date of the Collateral Manager in respect last assignment, together with copies of the exercise of any voting claims, invoices or consent rights, other information related thereto.
(c) Whether or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of not an Event of Default has occurred, any of Lender's officers, employees or a Collateral Manager Event agents shall have the right, at any time or times hereafter, in the name of Default Lender, any designee of Lender or Borrower, to verify the Agentvalidity, amount or any other matter relating to any Accounts by mail, telephone, telegraph or otherwise. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the first instance to make collection of its Accounts for Lender. Lender retains the right at all times after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only votesubject to applicable law regarding Medicaid/Medicare Account Debtors, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent notify Account Debtors that Accounts have been assigned to take such action as agent on its behalf Lender and to exercise such powers under this Agreement collect Accounts directly in its own name and to charge the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof collection costs and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateralexpenses, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Partyreasonable attorneys' fees, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral AgentBorrower.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (Numed Home Health Care Inc), Loan and Security Agreement (Numed Home Health Care Inc)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServices Provider, the Facility Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Services Provider pursuant to Section 7.7 7.8 or from the Lender Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Pledged Accounts from time to time and Permitted Investments in which amounts held in the Pledged Accounts may be invested from time to time, as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Services Provider or the Facility Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Services Provider and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager Services Provider upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Manager Services Provider on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServices Provider, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServices Provider, the Facility Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServices Provider, the Facility Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Services Provider on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager Services Provider commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Services Provider in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Services Provider of its intent to sell (in accordance with Section 7.107.11) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A7.11(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServices Provider, compare the results thereof and report the results to the Collateral Manager Services Provider in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager Services Provider upon request.
(b) The Collateral Agent shall provide to the Collateral Manager Services Provider a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Services Provider in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServices Provider, prior to the occurrence of an a Facility Termination Event of Default or a Collateral Manager Services Provider Event of Default or the Facility Agent, after the occurrence of an a Facility Termination Event of Default or a Collateral Manager Services Provider Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Services Provider of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Defaulta Facility Termination Event, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Owl Rock Capital Corp), Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day, no later than the Business Day and within three hours after following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by after 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day)) and provided that the Collateral Agent maintains or has received any information reasonably needed and requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of after written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral ObligationsObligations and the written request of the Servicer on such Business Day, the Collateral Agent shall perform, within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by no later than after 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day) provided that the Collateral Agent maintains or has received information reasonably needed and requested by it, the Collateral Agent shall perform the following functions, a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or and (y) in any event, it shall only be required to do so prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including including, for the avoidance of doubt, an Event of DefaultDefault or any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements agreements, notices or documents, each in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.)
Collateral Administration. The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Servicer, the Collateral ManagerAgent, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 7.6 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Borrower, the Collateral Manager Servicer, Lender Agent or the Agent as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business DayDay commencing fifteen (15) days after the Effective Date, provide make available to the Collateral Manager Servicer and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report to the Agent or the Collateral Manager Servicer upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver make available to the Agent, the Collateral Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, hereunder and as the Borrower, the Collateral ManagerServicer, the Agent, the Collateral Agent, any Lender Agent or any Lender may reasonably request and the Collateral Administrator reasonably agree from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ixvi) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager Servicer upon request.
(bvii) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent nor the Collateral Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default or from the Agent, after the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(cb) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i11.3(b)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i11.3(b)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, Neither the Collateral Agent nor the Collateral Administrator shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to it. Neither the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, Collateral Administrator nor the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, Agent or the Agent. The Neither the Collateral Administrator nor the Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Unmatured Event of Default, Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default, unless a Responsible Officer of the Collateral Agent Administrator or Collateral Agent, as applicable, has actual knowledge of such matter or written notice thereof is received by the Collateral Administrator or the Collateral Agent, respectively.
(dc) If, in performing its duties under this Agreement, the Collateral Agent or the Collateral Administrator is required to decide between alternative courses of action, the Collateral Agent or the Collateral Administrator, as the case may be, may request written instructions from (x) prior to the Agent occurrence of an Event of Default or a Servicer Event of Default, the Servicer or (y) at all times, the Agent, as to the course of action desired by it. If the Collateral Agent or the Collateral Administrator, as they case may be, does not receive such instructions within two Business Days after it has requested them, the Collateral Agent or the Collateral Administrator, as they case may be, may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent or the Collateral Administrator, as the case may be, shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent and 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.
(ed) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Ares Strategic Income Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Investment Manager, the Administrative Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Investment Manager pursuant to Section 7.7 or from the Lender Agents and/or the Administrative Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Investment Manager or the Administrative Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Investment Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Investment Manager on each Reporting Date, (A) the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Investment Manager, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Investment Manager, the Administrative Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Investment Manager, the Administrative Agent, any Lender Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Investment Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Investment Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Investment Manager in a mutually agreed format;; and
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Investment Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Investment Manager, compare the results thereof and report the results to the Collateral Investment Manager in a mutually agreed format.; and
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Investment Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Investment Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Investment Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Investment Manager, prior to the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default or the Administrative Agent, after the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Investment Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Defaulta Facility Termination Event, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll tangible Collateral, if any, (except tangible Collateral in the Collateral possession of Backup Servicer, Servicer, Verification Agent shall:
or Agent) will at all times be kept by Borrower at the locations set forth in Section 5.15 of Schedule A, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Borrower hereby agrees to deliver, on or prior to the date of each Revolving Advance, (i) within 15 days after the Effective Date, create a Collateral database with respect Verification Deliverables to the Verification Agent for each Receivable that is to be added to the Collateral in connection with such Revolving Advance and (ii) the Portfolio Documents to the Verification Agent for each Receivable that has been pledged is to be added to the Collateral in connection with such Revolving Advance. All Receivables constituting Collateral, shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default (i) to notify Account Debtors and/or Servicer that all Receivables of Borrower including, if to Account Debtors, their Receivables have been assigned to Agent and that all collections from such Receivables shall be paid directly to Agent, for the benefit of itself and the other Secured Parties from time to timeParties, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis to charge Borrower for changes any collection costs and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to timeexpenses, in each case based uponincluding reasonable attorney’s fees, and to the extent of, information furnished to the Collateral Agent incurred by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral As and when determined by Agent shall provide to in its sole discretion, Agent will perform the Collateral Manager a copy of all written notices searches described in clauses (i) and communications identified as being sent to it in connection (ii) below against Borrower, Indemnitor, Parent and Originator: (i) UCC searches with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf Secretary of State of the Collateral Manager in respect of jurisdiction where such Person is organized; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches against the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of DefaultBorrower, in which event each jurisdiction where the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionsBorrower maintains its executive office.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereundershall, or to enable any of them to exercise or enforce any of their respective rights hereundershall cause Servicer to, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any keep accurate and complete records of the Collateral Obligations now existing or hereafter arising, and all payments and collections thereon and shall submit to Agent such other instruments or notices, records on such periodic basis as Agent may be necessary or appropriate for request in its reasonable discretion.
(d) In respect of the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest portion of the Collateral Agent (for the benefit consisting of any Receivable which is evidenced by an electronic record that is a “transferable record” as defined in Section 16 of the Secured Parties) Uniform Electronic Transactions Act (as in effect in any relevant jurisdiction), if applicable, Borrower shall, or shall cause the CollateralServicer and/or Verification Agent to, including deliver to file financing and continuation statements in respect Agent the control of the Collateral such transferable electronic record in accordance with Section 10.1. It is understood and agreed that Applicable Law, including the Uniform Electronic Transactions Act as in effect in any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agentrelevant jurisdiction (to ensure, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfectamong other things, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Partythat, to the extent that this Agreement provides control is required, Agent has a first priority perfected Lien in such Secured Party Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the right contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent expressly agrees to so direct the Collateral release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer, Verification Agent or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or shall cause Servicer to identify) on the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of related electronic record the Collateral Agent has knowledge pledge of such matter or written notice thereof is received Receivable by the Collateral Borrower to Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, Subject to the Agent directs the Collateral Agent limitations set forth in Section 6.7 of this Agreement and the Collateral Backup Servicing Agreement, as applicable, and other Loan Documents. Agent is hereby authorized at all times shall have the right to enter into the Account Control Agreement access and review any and all Portfolio Documents in Borrower’s, Parent’s, Backup Servicer’s, Verification Agent’s, Originator’s and/or Servicer’s possession and any and all data and other related agreements in the form delivered information relating to the Collateral Portfolio Documents as may from time to time be input to or stored within Borrower’s, Parent’s, Backup Servicer’s, Verification Agent. For the avoidance of doubt’s, all of the Collateral AgentOriginator’s rightsand/or Servicer’s computers and/or computer records including diskettes, protections tapes and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement other computer software and any other related agreements in such capacitycomputer systems.
Appears in 1 contract
Sources: Loan and Security Agreement (Enova International, Inc.)
Collateral Administration. The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Servicer, the Collateral ManagerAgent, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 7.6 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Borrower, the Collateral Manager Servicer, Lender Agent or the Agent as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business DayDay commencing fifteen (15) days after the Effective Date, provide make available to the Collateral Manager Servicer and the Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report to the Agent or the Collateral Manager Servicer upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver make available to the Agent, the Collateral Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, hereunder and as the Borrower, the Collateral ManagerServicer, the Agent, the Collateral Agent, any Lender Agent or any Lender may reasonably request and the Collateral Administrator reasonably agree from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ixvi) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager Servicer upon request.
(bvii) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent nor the Collateral Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default or from the Agent, after the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(cb) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i11.3(b)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i11.3(b)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, Neither the Collateral Agent nor the Collateral Administrator shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to it. Neither the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, Collateral Administrator nor the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, Agent or the Agent. The Neither the Collateral Administrator nor the Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Unmatured Event of Default, Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default, unless a Responsible Officer of the Collateral Agent Administrator or Collateral Agent, as applicable, has actual knowledge of such matter or written notice thereof is received by the Collateral Administrator or the Collateral Agent, respectively.
(dc) If, in performing its duties under this Agreement, the Collateral Agent or the Collateral Administrator is required to decide between alternative courses of action, the Collateral Agent or the Collateral Administrator, as the case may be, may request written instructions from (x) prior to the Agent occurrence of an Event of Default or a Servicer Event of Default, the Servicer or (y) at all times, the Agent, as to the course of action desired by it. If the Collateral Agent or the Collateral Administrator, as they case may be, does not receive such instructions within two Business Days after it has requested them, the Collateral Agent or the Collateral Administrator, as they case may be, may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent or the Collateral Administrator, as the case may be, shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent and 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.
(ed) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the each Agent and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or and from the Lender Agents and/or and the AgentFacility Agent pursuant to Sections 3.4 and 8.5.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager and any Agent upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)[reserved];
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower Borrower, any Agent or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any LenderAgent;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender Agent may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format[reserved];
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format[reserved]; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured USActive 58353885.2 Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day, no later than the Business Day and within three hours after following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by after 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day)) and provided that the Collateral Agent maintains or has received any information reasonably needed and requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of after written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral ObligationsObligations and the written request of the Servicer on such Business Day, the Collateral USActive 58353885.2 Agent shall perform, within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by no later than after 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day) provided that the Collateral Agent maintains or has received information reasonably needed and requested by it, the Collateral Agent shall perform the following functions, a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the USActive 58353885.2 security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or and (y) in any event, it shall only be required to do so prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including including, for the avoidance of doubt, an Event of DefaultDefault or any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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.. -115- USActive 58353885.2
(e) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements agreements, notices or documents, each in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Collateral Report in accordance with Section 8.3(a)8.3;
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Collateral Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral, provided that such Collateral granted to the Collateral Agent and has not released been released, as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral Agent’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), and so long as the Collateral Agent maintains or has received any information reasonably requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and (iii) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Administrative Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which -91- event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Investment Manager and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Investment Manager pursuant to Section 7.7 or from the Lender Agents and/or the Administrative Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Investment Manager or the Administrative Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Investment Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Investment Manager on each Reporting Date, (A) the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Investment Manager, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Investment Manager, the Agent, any Lender Administrative Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Investment Manager, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Investment Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Investment Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Investment Manager in a mutually agreed format;; and
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Investment Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), 7.10(i)(A) and (B) and (Ciii) based upon information contained in the Collateral Database and information furnished by the Collateral Investment Manager, compare the results thereof and report the results to the Collateral Investment Manager in a mutually agreed format; and.
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Investment Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Investment Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Investment Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Investment Manager, prior to the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default or the Administrative Agent, after the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of DefaultEvent, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Investment Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement Article XIII that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it and (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Defaulta Facility Termination Event, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (TCP Capital Corp.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Facility Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 7.8 or from the Lender Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Servicer or the Facility Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the USActive 31637433.4 -112- Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager Servicer upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Facility Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Facility Agent, any Lender Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by 12:00 Noon after 5:00 p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.107.11) Collateral Obligations, the Collateral Agent shall perform, within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by no later than 12:00 Noon after 5:00 p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day) ), a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A7.11(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager Servicer upon request.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an a Facility Termination Event of Default or a Collateral Manager Servicer Event of Default or the Facility Agent, after the occurrence of an a Facility Termination Event of Default or a Collateral Manager Servicer Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.. USActive 31637433.4 -113-
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of after its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured USActive 31637433.4 -114- Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an a Facility Termination Event of Defaultor any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity. The Facility Agent hereby agrees that it will (i) not direct the Collateral Agent to deliver a Notice of Exclusive Control (as defined in the Account Control Agreement) except after the occurrence and during the continuation of a Facility Termination Event and (ii) direct the Collateral Agent to promptly rescind any delivered Notice of Exclusive Control (as defined in the Account Control Agreement) following the waiver or rescission of a Facility Termination Event in connection with any waiver or rescission of such Facility Termination Event.
Appears in 1 contract
Sources: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Facility Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 7.8 or from the Lender Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Servicer or the Facility Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager Servicer upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Facility Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Facility Agent, any Lender Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by 12:00 Noon after 5:00 p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.107.11) Collateral Obligations, the Collateral Agent shall perform, within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by no later than 12:00 Noon after 5:00 p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day) ), a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A7.11(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager Servicer upon request.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an a Facility Termination Event of Default or a Collateral Manager Servicer Event of Default or the Facility Agent, after the occurrence of an a Facility Termination Event of Default or a Collateral Manager Servicer Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of after its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an a Facility Termination Event of Defaultor any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity. The Facility Agent hereby agrees that it will (i) not direct the Collateral Agent to deliver a Notice of Exclusive Control (as defined in the Account Control Agreement) except after the occurrence and during the continuation of a Facility Termination Event and (ii) direct the Collateral Agent to promptly rescind any delivered Notice of Exclusive Control (as defined in the Account Control Agreement) following the waiver or rescission of a Facility Termination Event in connection with any waiver or rescission of such Facility Termination Event.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent (via the Collateral Agent’s website) certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may be invested from time to time, as provided in this Agreement (the “Collateral Database”)) based on and to the extent of information provided to it by the Servicer, the Facility Agent and the Lenders, as set forth herein;
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)[reserved];
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information contained in the Collateral Database with respect to the Collateral, if any, with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral Agent’s receipt of such request (provided such request is received by 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A7.10(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) based solely on information contained in the Collateral Database from time to time, track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall (i) distribute funds in accordance with each such Monthly Report in accordance with Section 8.3(a) and (ii) provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the The Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) and unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x))Agent. The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, then the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Subject to the terms of this Agreement, the Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions, and in each case the Collateral Agent shall not be liable taking such action. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and and, without implied limitation, shall be deemed to have acted in good faith if it acts in accordance with such advice.
(e) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement Agreement, and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent except for the benefit of the Secured Parties from time to time, comprised of the Lockbox Account and Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may possession of Custodian) will at all times be invested from time to time, as provided in this Agreement (kept by Borrower at the “Collateral Database”);
(ii) update the Collateral Database locations set forth on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponSchedule 5.15 hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the extent of, information furnished continental United States. Borrower hereby agrees to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, Custodian the Custodian Deliverables related to each Lender Agent, Pledged Receivable to be pledged in connection with the Borrower and the Collateral Manager Initial Advance on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided prior to the Collateral Agent by the BorrowerClosing Date or within five (5) Business Days prior to any Transfer Date in connection with any subsequent Advance, the Collateral Manageras applicable. All Pledged Receivables shall, the regardless of their location, be deemed to be under Agent, any Lender Agent or any Lender;
’s dominion and control (viwith files so labeled) provide other such information with respect and deemed to be in Agent’s possession. Subject to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements limitations set forth in Section 6.2(e)6.18 hereof, any of Agent’s officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Agent or any designee of Agent or Borrower, to verify the validity, amount or any other matter relating to the Collateral.
(b) As and when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower is organized and/or maintains their executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each case, based upon information contained in the Collateral Database and report the results thereof jurisdiction searched under clause (i) above.
(c) Whether delivered pursuant to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other document delivery requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained 4.1 in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results relation to the Collateral Manager Closing or Section 4.2 in connection with any Advance, as applicable, or to the extent not previously delivered in connection with any Pledged Receivable, Borrower shall, in relation to each Pledged Receivable, deliver to Agent or Custodian all items that Agent or Custodian must receive possession of to obtain a mutually agreed formatperfected Lien and security interest, including all Timeshare Documents, Timeshare Collateral, any other Custodian Deliverables, in each case to the extent not already in possession of Agent or Custodian;
(d) If not delivered in connection with an Advance, except in connection with Aruba Receivables, within ninety (90) days of the date of any Advance, Borrower shall deliver to Custodian a mortgagee final original lender’s title insurance policy (which may consist of one master policy referencing one or more Timeshare Mortgages) showing no exceptions to coverage (other than Permitted Liens) consistent with the title insurance commitment delivered to Custodian in connection with such Pledged Receivable prior to such Advance, which title insurance policy must insure that the applicable Timeshare Mortgage creates, subject to Permitted Liens, a first priority lien in and to the financed Vacation Ownership Interest insuring Borrower and its successors and/or assigns; and
(ixe) track the Principal Balance of each Collateral Obligation Borrower shall, or shall cause Servicer to, keep accurate and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf complete records of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior and all payments and collections thereon and shall submit such records to Agent on such periodic basis as required pursuant to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionsServicing Agreement.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All tangible Collateral Agent shall:
(i) within 15 days after the Effective Date, create a except tangible Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may possession of Backup Servicer) will at all times be invested from time to time, as provided in this Agreement (kept by Issuer or Servicer at the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements locations set forth in Section 6.2(e)5.15 of Schedule A attached hereto, and shall not, without thirty (30) calendar days prior written notice to Administrative Agent and Collateral Trustee, be moved therefrom other than to another such location, and in each caseany case shall not be moved outside the continental United States. All Receivables constituting Collateral, based upon information contained shall, regardless of their location, be deemed to be under Collateral Trustee’s dominion and control and deemed to be in Collateral Trustee’s possession. In addition to any provision of any Transaction Document, Collateral Trustee shall have the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours right at all times after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on occurrence and during the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence continuance of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality notify Account Debtors and/or Servicer that all Receivables of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, Issuer including, without limitationif to Account Debtors, the execution or filing by the their Receivables have been assigned to Collateral Agent as secured party/assignee of Trustee and that all collections from such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) Receivables shall be deemed paid directly to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (Trustee, for the benefit of the Secured Parties, and (ii) in the Collateralto charge Issuer for any collection costs and expenses, including reasonable attorney’s fees, incurred by Collateral Trustee.
(b) As and when determined by Administrative Agent in its sole discretion, Administrative Agent may perform the searches described in clauses (i) and (ii) below against Issuer, Seller and Originators: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where any such Person is organized; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where any such Person maintains their executive offices, a place of business or any assets
(c) Issuer shall, or shall require Servicer to, keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit to file financing Administrative Agent and Collateral Trustee such records on such periodic basis as Administrative Agent or Collateral Trustee may request in their reasonable discretion.
(d) Issuer shall, or shall require Servicer to, upon the receipt of written notice from Administrative Agent following the occurrence and continuation statements of an Event of Default, cooperate with Administrative Agent, if Administrative Agent elects to attach or associate in electronic format a legend, stamp, notation or other identification to all or any portion of the Portfolio Documents to evidence the pledge thereof to Collateral Trustee, such legend, stamp, notation or other identification shall be in form and substance acceptable to Administrative Agent in its sole discretion.
(e) In respect of the portion of the Collateral consisting of any Receivable which is evidenced by an electronic record that is a “transferable record” as defined in Section 16 of the Uniform Electronic Transactions Act (as in effect in any relevant jurisdiction), Issuer shall, or shall require each Servicer to, deliver to Collateral Trustee the control of such transferable electronic record in accordance with Section 10.1. It is understood and agreed Applicable Law, including the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction (to ensure, among other things, that any and all actions performed by the Collateral Agent Trustee has a first priority perfected Lien in connection with this Section 11.3(c)(i) such Collateral), which shall be delivered, at Issuer’s expense, to Collateral Trustee at its address as set forth herein or as otherwise specified by Collateral Trustee and, except as otherwise expressly provided herein to the contrary, held in Collateral Trustee’s possession, custody, and control until all of the Obligations have been fully satisfied or Administrative Agent expressly agrees to release such documents. Alternatively, Collateral Trustee, at the written direction of the Administrative Agent, may elect for the Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Collateral Trustee during such period of time. Issuer shall identify (or shall cause Servicer to identify) on the related electronic record the pledge of such Receivable by Issuer to Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunderTrustee.
(iif) The Agent may direct the Collateral Agent in writing Issuer hereby agrees to, and shall require ▇▇▇▇▇, Seller, Originator, and/or Servicer, to take any such incidental action hereunder. With respect all applicable protective actions to other actions which are incidental to the actions specifically delegated prevent destruction of records pertaining to the Collateral Agent hereunder, in accordance with each Servicing Agreement. Subject to the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected limitations set forth in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions Section 6.7 of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Backup Servicing Agreement, as applicable, Administrative Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent at all times shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agentaccess and review any and all Portfolio Documents in Issuer’s, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunderBackup Servicer’s, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement Originator’s and/or Servicer’s possession and any and all data and other related agreements in the form delivered information relating to the Collateral Agent. For the avoidance of doubtPortfolio Documents as may from time to time be input to or stored within Issuer’s, all of the Collateral AgentBackup Servicer’s, Originator’s rightsor Servicer’s computers and/or computer records including, protections without limitation, diskettes, tapes and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement other computer software and any other related agreements in such capacitycomputer systems.
Appears in 1 contract
Sources: Note Issuance and Purchase Agreement (Enova International, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis(A) It agrees to deliver, and provide or cause to be delivered, to the BorrowerVerification Agent, prior to each Borrowing Date, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant VA Deliverables for each Loan that is to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect be added to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations such Borrowing. All Loans and the other Collateral held hereunder which it receives from the related ObligorRelated Documents constituting Collateral, participating bank and/or agent bankshall, regardless of their location, be deemed to be under Administrative Agent’s dominion and control and deemed to be in Administrative Agent’s possession. Borrower shall cooperate fully with Administrative Agent in an effort to facilitate and promptly conclude each such verification process. In no instance shall the Collateral Agent be under addition to any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise provision of any voting or consent rightsFacility Document, or similar actions, unless it receives specific written instructions from Administrative Agent shall have the Collateral Manager, prior to right at all times after the occurrence and during the continuance of an Event of Default or a (i) to notify Obligors and/or Servicer that all Collateral Manager Event of Default or the Loans including, if to Obligors, their Loans have been assigned to Administrative Agent and that all collections from such Loans shall be paid directly to Administrative Agent, after for the benefit of itself and the Lenders, and (ii) to charge Borrower for any collection costs and expenses, including reasonable attorney’s fees, incurred by Administrative Agent.
(B) It shall, or shall require the Servicer, Backup Servicer, Custodian and Verification Agent to, as applicable, keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Administrative Agent on such periodic basis as Administrative Agent may request in its reasonable discretion.
(C) It shall, or shall require Servicer, Backup Servicer, Custodian and Verification Agent to, upon the receipt of written notice from Administrative Agent following the occurrence and continuation of an Event of Default or a Collateral Manager Event of Default, cooperate with Administrative Agent, and shall require Servicer, Backup Servicer, Custodian and Verification Agent to cooperate with Administrative Agent, as applicable, if Administrative Agent elects to attach or associate in which event electronic format a legend, stamp, notation or other identification to all or any portion of the Related Documents to evidence the pledge thereof to Administrative Agent, such legend, stamp, notation or other identification shall be in form and substance acceptable to Administrative Agent in its sole discretion.
(D) It agrees to, and to use reasonable efforts to cause Seller, Backup Servicer, Custodian, Verification Agent and/or Servicer to, take all applicable protective actions to prevent destruction of records pertaining to the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition the Servicing Agreement, Backup Servicing Agreement, Custody Agreement and/or Verification Agent Agreement. Administrative Agent at all times shall have the right to access and review any and all VA Deliverables or Related Documents in Borrower’s, Verification Agent’s, Custodian’s, Seller’s, Backup Servicer’s and/or Servicer’s possession, as applicable, and any and all data and other information relating to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction VA Deliverables or Related Documents as are expressly delegated may from time to time be input to or stored within the Collateral Agent by the terms hereof and thereofBorrower’s, together with such powers as are reasonably incidental thereto. In furtheranceVerification Agent’s, and without limiting the generality of the foregoingCustodian’s, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documentsSeller’s, and take all further action (at the written direction of the Agent) that the Agent deems necessary Backup Servicer’s or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, Servicer’s computers and/or computer records including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statementsdiskettes, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, tapes and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing computer software and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereundercomputer systems.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Upstart Holdings, Inc.)
Collateral Administration. The (1) All tangible Collateral Agent shall maintain a database (except Collateral in the possession of certain characteristics of Backup Servicer or Agent) will at all times be kept by Borrower or Servicer at the Collateral locations set forth on an ongoing basisSchedule 5.17B hereto, and provide shall not, without thirty (30) calendar days prior written notice to the BorrowerAgent, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant be moved therefrom other than to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponanother such location, and in any case shall not be moved outside the continental United States. ▇▇▇▇▇▇▇▇ hereby agrees to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and Backup Servicer or, upon the Collateral Manager upon request.
(b) The Collateral Agent shall provide request of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rightssuch Advance shall, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any regardless of their respective rights hereunderlocation, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, shall have the execution or filing by right upon reasonable notice, at any time during normal business hours, in the Collateral name of Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any designee of Agent or Borrower, to verify the Collateral Obligations now existing validity, amount or hereafter arisingany other matter relating to the Collateral. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party to Leases held by Borrower that their Leases have been assigned to Agent and to collect such other instruments or noticesLeases directly in Agent’s own name, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of itself and the Secured Parties) in the CollateralLenders, and to charge collection costs and expenses, including attorney’s fees, to file financing Borrower.
(2) As and continuation statements when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower, Servicer and Holdings: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower, Servicer or Holdings is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets.
(3) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request in its Permitted Discretion.
(4) In respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Law, Borrower shall deliver to Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agentor, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, Servicer (i) the original Portfolio Documents; and (ii) originals or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any Secured Parties related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which shall be delivered, at ▇▇▇▇▇▇▇▇’s expense, to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the taking Obligations have been fully satisfied or Agent expressly agrees to release such custody of such action, in documents. In respect of the determination portion of the Collateral Agent, (x) shall be in violation consisting of any Applicable Law or contrary Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to any provisions of this Agreement or (y) shall expose Agent the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt control of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the written instructions contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent pursuant expressly agrees to clause (x))release such documents. The Collateral Agent shall not be liable for any action takenAlternatively, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of related electronic record the Collateral Agent has knowledge pledge of such matter or written notice thereof is received Lease by the Collateral Borrower to Agent.
(d5) IfBorrower hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in performing its duties under Section 6.7 of this Agreement, the Collateral Agent is required to decide between alternative courses of actionat all times during regular business hours (provided, the Collateral that any electronic materials available on a website or through other remote electronic means for which Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but been given access shall be under no duty to, take available to Agent at all times) shall have the right to access and review any and all Portfolio Documents in Borrower’s or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement Servicer’s possession and any and all data and other related agreements in the form delivered information relating to the Collateral Agent. For the avoidance of doubtPortfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, all of the Collateral Agent’s rightswithout limitation, protections diskettes, tapes and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement other computer software and any other related agreements in such capacitycomputer systems.
Appears in 1 contract
Sources: Loan and Security Agreement (Katapult Holdings, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed formatreserved;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed formatreserved; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower each Loan Party hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove; provided that, the Collateral Agent shall have no duty or obligation to prepare or file any such financing or continuation statement and such obligation shall remain with the Borrower. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower each Loan Party hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including including, for the avoidance of doubt, an Event of DefaultDefault or any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 4, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may be invested from time to time, as provided in this Agreement (the “Collateral Database”)) based on and to the extent of information provided to it by the Servicer, the Facility Agent and the Lenders, as set forth herein;
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and the Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral Agent’s receipt of such request (provided such request is received by 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence and during the continuation of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the The Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(e) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Crestline Lending Solutions, LLC)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll Collateral (except Deposit Accounts and Collateral in the possession of Custodian) will at all times be kept by Borrower at the locations set forth on Schedule 5.18A hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Borrower hereby agrees to deliver, or cause to be delivered, to Custodian, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database Custodian Deliverables with respect to each Pledged Loan (other than as it relates to an Approved Syndicated Loan or Broadly Syndicated Loan) within five (5) Business Days after the Collateral that has been pledged related Borrowing Date. All Pledged Loans shall, regardless of their location, be deemed to be under Agent’s dominion and control (with files so labeled) and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents shall have the Collateral Agent for the benefit of the Secured Parties from right upon reasonable notice, at any time to timeduring normal business hours, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition name of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral designee of Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the or Borrower, to verify the Collateral Managervalidity, the Agent, any Lender Agent amount or any Lender may reasonably request from time other matter relating to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation including inventory appraisals. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process or inventory appraisals. In addition to and notwithstanding any provision of any Loan Document, Agent shall have the tests right at all times after the occurrence and other requirements set forth during the continuance of an Event of Default to notify any Person owing amounts pursuant to Pledged Loans that their Pledged Loan has been assigned to Agent and to collect such amounts directly in Section 6.2(e)its own name and to charge collection costs and expenses, in each caseincluding reasonable attorneys’ fees, based upon information contained to Borrower, provided, however, that Borrower shall endeavor in the Collateral Database and report the results thereof first instance to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt make collection of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestamounts for Agent.
(b) The Collateral As and when determined by Agent shall provide to in its sole discretion, Agent will perform the Collateral Manager a copy of all written notices searches described in clauses (i) and communications identified as being sent to it in connection (ii) below against Borrower: (i) UCC searches with the Collateral Obligations Secretary of State and the other Collateral held hereunder which it receives from the related Obligorlocal filing offices of each jurisdiction where Borrower are organized and/or maintain their executive offices, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty a place of business or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rightsassets; and (ii) judgment, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Defaultfederal tax lien and corporate and partnership tax lien searches, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionseach jurisdiction searched under clause (i) above.
(c) In addition Within five (5) Business Days after the applicable Borrowing Date, Borrower shall deliver, or cause to be delivered, to Agent or Custodian any Attached Equity Interests and all items of Collateral that Agent must receive possession of to obtain a first-priority perfected Lien in such Collateral to the above:extent not already in the possession of Agent or Custodian.
(d) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request in its sole discretion. If requested by Agent upon or at any time after the occurrence and during the continuation of an Event of Default, Borrower shall execute and deliver to Agent, formal written assignments of all of its Pledged Loans as Agent may request, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Pledged Loans exceed the amount of the outstanding Obligations, upon confirmation by Agent of such excess amount and so long as no Default or Event of Default has occurred and is continuing, such excess amount shall be refunded to Borrower upon written request in accordance with the terms of this Agreement.
(e) Borrower hereby agrees to take the following protective actions to prevent destruction of records pertaining to Borrower’s Collateral: (i) The Agent if Borrower maintains its Collateral records on a manual system, such records shall be kept in a fire proof room or on no less than thirty (30) calendar days following the end of each calendar month, a record of all payments on Pledged Loans and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the all other Transaction Documents as are expressly delegated matters relating to the Collateral shall be placed in an off-site safety deposit box (and Agent shall have access to such safety deposit box); or (ii) if the Collateral records are computerized, Borrower agrees to create an electronic “back-up” of the computerized information and to provide Agent monthly with an electronic copy of such “back-up” information (A) prior to the Closing Date and (B) no later than thirty (30) days following the end of each calendar month following the Closing Date.
(f) Promptly upon learning of the anticipated payment in full of any Pledged Loan, Borrower shall give written notice thereof to Agent. Within two (2) Business Days after the actual payment in full of any Pledged Loan and delivery of the proceeds thereof to the Blocked Account in accordance with Section 2.4 hereof, Borrower shall give written notice thereof to Agent and Custodian of such payment.
(g) Notwithstanding anything set forth herein to the contrary, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then upon Agent’s receipt of (i) a written request for the release of Agent’s Lien on any Pledged Loan, (ii) unless otherwise agreed to in writing by Agent in its sole discretion, evidence acceptable to Agent that such Pledged Loan is being sold to a third-party, non-Affiliate of Borrower on an arms-length basis for which purchase no Affiliate of Borrower is providing seller financing in connection with such sale and (iii) receipt of payment (or payment into escrow pursuant to a mechanism acceptable to Agent) of an amount equal to (A) 100% of the net proceeds of the sale of such Pledged Loan plus (B) the amount required (if any) to cause borrower to be in compliance with Section 2.6 hereof following the release of such Pledged Loan, Agent shall, promptly, at Borrower’s cost and expense, deliver to Borrower (i) any Collateral relating to such Pledged Loan and (ii) Borrower-prepared release, satisfaction, discharge and/or termination agreements or similar instruments or filings in relation to such related Collateral and any other UCC or similar filings made by Agent in relation thereto, in form and substance reasonably satisfactory to Agent. Upon the request of Borrower, Agent agrees to provide a payoff letter, in form and substance acceptable to Agent, for the release of Agent’s Lien on any such Pledged Loan, subject to the terms hereof and thereof, together with conditions of this Section 2.11(g). Borrower shall bear the responsibility of recording any such powers as are reasonably incidental thereto. In furtherance, documents and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent shall bear all out-of-pocket expenses (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral legal fees and disbursements of Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(iLender) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agentsuch payoff letter, release, reassignment and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunderdelivery.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may be invested from time to time, time as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation (x) to the Collection Account of Principal Collections and Interest Collections and (y) to the Reference Asset Account of all Reference Asset Collections and, in each case, any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)8.3;
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, Date (A) the Monthly Report in accordance with Section 8.5 and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral Agent’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)) and the Collateral Agent maintains or has received any information reasonably requested by it, the Collateral Agent shall perform the following functions: (x) as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Sections 6.2(e) and (f), and (y) as of each date a new Reference Asset is included on Schedule 5 hereto pursuant to Section 6.2(e)6.4 and each date a Reference Asset Revaluation Event occurs, perform a pro forma calculation of the Reference Asset Coverage Test, in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of (A) its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Servicer in a mutually agreed format or (B) the Equityholder’s intent to sell (in accordance with Section 7.5(q)(ii)) any Reference Asset, the Collateral Manager Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the Reference Asset Coverage Test based upon information contained in the Collateral Database and information furnished by the Servicer, compare the results thereof and report the results to the Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and Reference Asset and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Reference Assets, the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an a Facility Termination Event of Default or a Collateral Manager Event of Servicer Default or the Administrative Agent, after the occurrence of an a Facility Termination Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Business Development Corp of America)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithExcept as permitted pursuant to Sections 7.8(a) and 7.8(b), all Collateral (except Deposit Accounts and Collateral having an aggregate value of $50,000 or less at any one location) will at all times be kept by Borrower at the Collateral Agent shall:
(i) within 15 days after the Effective Datelocations set forth on Schedule 5.4 hereto, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties which may be amended from time to time, comprised and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom, and in any case shall not be moved outside the continental United States. Whether or not an Event of Default has occurred, any of the Collateral Obligations credited to Agent’s officers, employees, representatives or agents shall have the Accounts from right, at any time to time and Permitted Investments in which amounts held during normal business hours, in the Accounts may be invested from time to time, as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition name of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent designee of Agent, or Borrower, to verify the validity, amount or any Lender;
(vi) provide other such information with respect matter relating to the Collateral granted Collateral. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. Notwithstanding anything in this subsection to the Collateral contrary, Agent shall have the right at all times after the occurrence and during the continuation of an Event of Default to notify Persons owing Accounts to Borrower that their Accounts have been assigned to Agent and not released as may be routinely maintained by the Collateral Agent to collect such Accounts directly in performing its ordinary Collateral Agent function pursuant hereunderown name and to charge collection costs and expenses, as the including reasonable attorney’s fees, to Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral As and when determined by Agent shall in its Permitted Discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower or any Guarantor (the results
(i) upon Borrower’s request and at Borrower’s expense, provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise copies of any voting or consent rights, or similar actions, unless it receives specific written instructions from such searches to Borrower and (ii) will use a search service with which Agent has a discount arrangement in an effort to minimize the Collateral Manager, prior to the occurrence expense of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionssearches.
(c) In addition Upon Agent’s request, Borrower shall immediately deliver to the above:
(i) The Agent all items for which Lender must receive possession to obtain a perfected Lien and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereofall notes, together with such powers as are reasonably incidental thereto. In furtherancecertificates, and without limiting the generality documents of the foregoingtitle, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documentsChattel Paper, warehouse receipts, Instruments, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other similar instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the constituting Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(iid) The Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Agent on such periodic bases as Agent may direct the Collateral Agent request in writing to take any such incidental action hereunderits Permitted Discretion. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunderIn addition, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected if Accounts of Borrower in acting or refraining from acting) upon the written direction an aggregate face amount in excess of $500,000 become ineligible because they fall within one of the Agent; provided that specified categories of ineligibility set forth in the Collateral definition of Eligible Billed Receivables or Eligible Unbilled Receivables, Borrower shall notify Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination occurrence within two (2) Business Days following its discovery of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent such occurrence and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent Borrowing Base shall thereupon be deemed adjusted to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon reflect such occurrence, . After the Collateral Agent shall act in accordance with occurrence and during the written instructions continuation of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer and upon Agent’s request, Borrower shall execute and deliver to Agent formal written assignments of all of its Accounts weekly or daily as Agent may request, including all Accounts created since the date of the Collateral Agent has knowledge last assignment, together with copies of such matter or written notice thereof is received by the Collateral Agent.
(d) Ifclaims, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceinvoices and/or other information related thereto.
(e) Concurrently herewithBorrower (i) shall provide prompt written notice to its current bank to transfer all items, the Agent directs the Collateral Agent collections and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered remittances to the Collateral Concentration Account, and to any Account Debtor not remitting to the Blocked Account, to do so promptly, (ii) after the occurrence and during the continuation of an Event of Default, and upon Agent. For ’s request, shall provide prompt written notice to each Account Debtor that Agent has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor, and shall direct each Account Debtor to make payments directly to Lender’s Concentration Account; and (iii) shall do anything further that may be lawfully required by Agent to secure Agent, for the avoidance benefit of doubtitself and Lenders, all and to effectuate the intentions of the Collateral Loan Documents. Borrower hereby authorizes Agent’s rights, protections for purposes of clause (i) hereof, upon any failure to send such notices and immunities provided herein shall apply directions within twenty (20) calendar days after the date of this Agreement (or twenty (20) calendar days after the Person becomes an Account Debtor), and for purposes of clause (ii) hereof, promptly following the occurrence and continuation of such Event of Default, to the Collateral Agent for send any actions taken or omitted and all similar notices and directions to be taken under the such Account Control Agreement and any other related agreements in such capacityDebtors.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (America Service Group Inc /De)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Administrative Agent and the Lender Agents Lenders certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents Lenders and/or the Administrative Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) accordance with Section 8.3; distribute funds in accordance with such Monthly Collateral Report in accordance with Section 8.3(a);in
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Collateral Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral, provided that such Collateral granted to the Collateral Agent and has not released been released, as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral Agent’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), and so long as the Collateral Agent maintains or has received any information reasonably requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and (iii) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer and the Administrative Agent a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Administrative Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent (who shall promptly, but in no event later than the following second Business Day, deliver notice thereof to the Administrative Agent).
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The All tangible Collateral Agent shall maintain a database (except Collateral in the possession of certain characteristics of Backup Servicer or Agent) will at all times be kept by Borrower or Servicer at the Collateral locations set forth on an ongoing basisSchedule 5.17B hereto, and provide shall not, without thirty (30) calendar days prior written notice to the BorrowerAgent, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant be moved therefrom other than to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponanother such location, and in any case shall not be moved outside the continental United States. Borrower hereby agrees to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and Backup Servicer or, upon the Collateral Manager upon request.
(b) The Collateral Agent shall provide request of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rightssuch Advance shall, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any regardless of their respective rights hereunderlocation, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, shall have the execution or filing by right upon reasonable notice, at any time during normal business hours, in the Collateral name of Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any designee of Agent or Borrower, to verify the Collateral Obligations now existing validity, amount or hereafter arisingany other matter relating to the Collateral. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party to Leases held by Borrower that their Leases have been assigned to Agent and to collect such other instruments or noticesLeases directly in Agent’s own name, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of itself and the Secured Parties) in the CollateralLenders, and to charge collection costs and expenses, including attorney’s fees, to file financing Borrower. As and continuation statements when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower, Servicer and Holdings: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower, Servicer or Holdings is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets. Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request in its Permitted Discretion. In respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Law, Borrower shall deliver to Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agentor, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, Servicer (i) the original Portfolio Documents; and (ii) originals or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any Secured Parties related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which shall be delivered, at Borrower’s expense, to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the taking Obligations have been fully satisfied or Agent expressly agrees to release such custody of such action, in documents. In respect of the determination portion of the Collateral Agent, (x) shall be in violation consisting of any Applicable Law or contrary Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to any provisions of this Agreement or (y) shall expose Agent the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt control of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the written instructions contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent pursuant expressly agrees to clause release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (x))or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agent. The Collateral Agent shall not be liable for any action takenBorrower hereby agrees to, suffered or omitted by it in accordance with and to cause Servicer to, take the request or direction following protective actions to prevent destruction of any Secured Party, records pertaining to the extent Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that this Agreement provides such Secured Party any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to so direct the Collateral Agent, access and review any and all Portfolio Documents in Borrower’s or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement Servicer’s possession and any and all data and other related agreements in the form delivered information relating to the Collateral Agent. For the avoidance of doubtPortfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, all of the Collateral Agent’s rightswithout limitation, protections diskettes, tapes and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement other computer software and any other related agreements in such capacitycomputer systems.
Appears in 1 contract
Sources: Loan and Security Agreement (Katapult Holdings, Inc.)
Collateral Administration. The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Borrower, the Collateral Manager Servicer or the Agent as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report to the Agent or the Collateral Manager Servicer upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral AgentAdministrator’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 Agent Administrator shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viiivii) upon the Collateral AgentAdministrator’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent Administrator shall perform, within three hours after the Collateral AgentAdministrator’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager Servicer upon request.
(b) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Agent, the Collateral Custodian nor the Collateral Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions. In the absence of such instructions, no action will be taken.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting solely at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (solely at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent or the Collateral Administrator is required to decide between alternative courses of action, the Collateral Agent or the Collateral Administrator, as the case may be, may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent or the Collateral Administrator, as the case may be, does not receive such instructions within two Business Days after it has requested them, the Collateral Agent or the Collateral Administrator, as the case may be, may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent or the Collateral Administrator, as the case may be, shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent and 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAs and when determined by the Administrative Agent or the Requisite Lenders in its or their reasonable discretion, upon the occurrence and during the continuation of a Default or an Event of Default, the Collateral Administrative Agent shall:
(i) within 15 days after or the Effective DateRequisite Lenders may, create a Collateral database with respect to at the Collateral that has been pledged to Borrower’s expense, perform UCC, judgment, litigation, tax Lien and other similar searches, in any jurisdictions determined by Administrative Agent or the Collateral Agent for the benefit of the Secured Parties Requisite Lenders from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and against any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestLoan Party.
(b) The Collateral Agent Borrower, and Manager, as applicable, shall provide to the Collateral Manager a copy of all written notices keep accurate and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf complete records of the Collateral Manager in respect of Customer Contracts and all payments and Collections thereon and shall Uniti – Bridge Loan and Security Agreement submit such records to Administrative Agent on such periodic basis (and at least quarterly) as the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default Administrative Agent or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent Requisite Lenders may reasonably request. If requested by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Administrative Agent (acting at the direction of the Agent) Requisite Lenders), the Borrower, and each other Loan Party, as its agent to applicable, shall execute and deliver all further instruments to the Administrative Agent, formal written assignments or allonges, in form and documents, and take all further action substance reasonably acceptable to the Administrative Agent (acting at the written direction of the Agent) that the Agent deems necessary Requisite Lenders), of any or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, Customer Contracts as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Administrative Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be acting at the written direction of the AgentRequisite Lenders) may reasonably request, and the Collateral Agent shall have no responsibility or liability in connection together with determining any actions necessary or desirable to perfectcopies of claims, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunderinvoices and/or other information related thereto.
(iic) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunderBorrower shall, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the Administrative Agent’s written direction request upon the occurrence and during the continuation of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless (i) provide prompt written notice to each Customer that the Administrative Agent has been granted a Responsible Officer of Lien on and security interest in, upon and to all Customer Contracts payable by such Customer and (ii) shall do anything further that may be lawfully required under Applicable Law and requested in writing by the Administrative Agent or the Requisite Lenders in their reasonable discretion to secure the Administrative Agent’s interest in the Collateral Agent has knowledge and effectuate the intentions of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Bridge Loan and Security Agreement (Uniti Group Inc.)
Collateral Administration. (a) The Collateral Agent Custodian shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.312.03, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent8.07.
(ab) In connection therewith, the Collateral Agent Custodian shall:
(i) within 15 days after on or before the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Administrative Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations Assets credited to the Accounts from time to time and Permitted Investments Cash Equivalents in which amounts held in the Accounts may be invested from time to time, as provided in this Agreement Agreement, it being agreed that such database shall be reported on a trade-date basis and settlement-date basis (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Custodian by the BorrowerAdministrative Agent, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent Custodian from time to time or based upon notices received by the Collateral Agent Custodian from the issuer, or trustee or agent bank under an underlying instrumentUnderlying Instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Custodian shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such each Monthly Report delivered with respect to each month in which a Payment Date occurs in accordance with Section 8.3(a)2.13;
(v) prepare and deliver to the Administrative Agent, each Lender AgentLender, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report (commencing in October 2025) and any update pursuant to Section 8.5 12.04 when requested by the Collateral ManagerServicer, the Borrower Borrower, the Administrative Agent or the Agentany Lender, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 2.08 and such other information as may be provided to the Collateral Agent Custodian by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Custodian in performing its ordinary Collateral Agent Custodian function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral AgentCustodian’s receipt of such request (provided such request is received by 12:00 Noon noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations Assets to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e4.02(f) and (g), in each case, based upon information contained in the Collateral Database and information furnished by the Servicer and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral AgentCustodian’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.102.15) Collateral ObligationsAssets, the Collateral Agent shall perform, within three hours after the Collateral AgentCustodian’s receipt of such request (provided such request is received by no later than 12:00 Noon noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B2.15(a)(i)(A) and (C) ), in each case, and based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Adjusted Principal Balance and the Principal Balance of each Collateral Obligation Asset and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(bc) The Collateral Agent Custodian shall provide to the Collateral Manager Servicer (if requested by the Servicer) a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Assets and the other Collateral held hereunder which it receives from the related Obligorobligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Custodian be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from (absent the Collateral Manager, prior to the occurrence existence of an Event of Default or a Collateral Manager Event of Default Servicer Termination Event) the Servicer or (during the Agent, after the occurrence continuation of an Event of Default or a Collateral Manager Event of DefaultServicer Termination Event) the Administrative Agent, in which event the Collateral Agent Custodian shall only vote, consent or take such other action in accordance with such instructions.
(cd) In addition Notwithstanding any provision to the above:
(i) The Agent and each contrary elsewhere in the Loan Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party further authorizes in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Loan Documents or otherwise against the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall be fully protected in acting have no investment or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(iiie) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the terms hereof at the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct direction the Collateral AgentCustodian.
(f) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may reasonably request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify the Borrower’s identity such as organizational documents, certificates of good standing, licenses to do business, or other pertinent identifying information.
(g) So long as no Event of Default has occurred and is continuing, and for so long as any amounts are on deposit in the USD Principal Collection Account, the USD Interest Collection Account, or the AgentUSD Unfunded Exposure Account, the Collateral Custodian shall, within five Business Days following the Closing Date, invest and reinvest such funds held in the USD Principal Collection Account, the USD Interest Collection Account, or the USD Unfunded Exposure Account in the Standby Directed Investment or in other Cash Equivalents if otherwise designated by the Borrower (or the Servicer on behalf of the Borrower). Interest received on such Cash Equivalents shall be retained in the USD Principal Collection Account, the USD Interest Collection Account, or the USD Unfunded Exposure Account and invested and reinvested as aforesaid. Any gain realized from such investments shall be credited to the USD Principal Collection Account, the USD Interest Collection Account, or the USD Unfunded Exposure Account and any loss resulting from such investments shall be charged to the USD Principal Collection Account, the USD Interest Collection Account, or the USD Unfunded Exposure Account. The Collateral Agent Custodian shall not in any way be deemed to have notice or knowledge held liable by reason of any matter hereunder, including insufficiency of the Collection Account resulting from any loss relating to any such investment. After the occurrence and during the continuance of an Event of Default, unless a Responsible Officer of and for so long as any amounts are on deposit in the Collateral Agent has knowledge of such matter USD Principal Collection Account, the USD Interest Collection Account, or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this AgreementUSD Unfunded Exposure Account, the Collateral Agent is required to decide between alternative courses of actionCustodian shall within five Business Days following the Closing Date, invest and reinvest such funds held in the USD Principal Collection Account, the Collateral Agent may request written instructions from USD Interest Collection Account, or the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the USD Unfunded Exposure Account Control Agreement and any other related agreements in the form delivered to Standby Directed Investment or in other Cash Equivalents if otherwise designated by the Collateral Administrative Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The (A) It agrees to deliver, or cause to be delivered, to the E-Vault Provider and Verification Agent, prior to each Borrowing Date, the Loan Documents for each Loan that is to be added to the Collateral in connection with such Borrowing. All Loans and Related Documents constituting Collateral, shall, regardless of their location, be deemed to be under Facility Agent’s dominion and control and deemed to be in Facility Agent’s possession. Borrower shall cooperate fully with Facility Agent shall maintain a database of certain characteristics in an effort to facilitate and promptly conclude each verification process relating to the Loan Documents to be completed by the Verification Agent pursuant to the terms of the Collateral on an ongoing basis, and provide Verification Agreement. In addition to the Borrowerany provision of any Facility Document, the Collateral Manager, Facility Agent shall have the Agent and the Lender Agents certain reports, schedules and calculations, right at all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days times after the Effective Date, create a Collateral database with respect to occurrence and during the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence continuance of an Event of Default or a (i) to notify Obligors and/or Servicer that all Collateral Manager Event of Default or the Loans including, if to Obligors, their Loans have been assigned to Facility Agent and that all collections from such Loans shall be paid directly to Facility Agent, after for the benefit of itself and the Lenders, and (ii) to charge Borrower for any collection costs and expenses, including reasonable attorney’s fees, incurred by Facility Agent.
(B) It shall, or shall require the Servicer, the Backup Servicer, the Verification Agent and the E-Vault Provider to, as applicable, to keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to the Facility Agent on such periodic basis as Facility Agent may request in its reasonable discretion.
(C) It shall, or shall require the Servicer, the Backup Servicer, the E-Vault Provider and the Verification Agent to, upon the receipt of written notice from Facility Agent following the occurrence and continuation of an Event of Default or a Collateral Manager Event of Default, cooperate with Facility Agent, and shall require the Servicer, the Backup Servicer, the E-Vault Provider and the Verification Agent to cooperate with Facility Agent, as applicable, if Facility Agent elects to attach or associate in which event electronic format a legend, stamp, notation or other identification to all or any portion of the Related Documents to evidence the pledge thereof to Facility Agent, such legend, stamp, notation or other identification shall be in form and substance acceptable to Facility Agent in its sole discretion.
(D) It agrees to, and to use reasonable efforts to cause the Seller, the Backup Servicer, the Verification Agent, the E-Vault Provider and/or the Servicer to, take all applicable protective actions to prevent destruction of records pertaining to the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition the Servicing Agreement, the Backup Servicing Agreement, the Collateral Verification Agreement and/or the ECCA. The Facility Agent at all times shall have the right to access and review any and all Loan Documents or Related Documents in the Borrower’s, the E-Vault Provider’s, the Seller’s, the Backup Servicer’s and/or the Servicer’s possession, as applicable, and any and all data and other information relating to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Loan Documents or Related Documents as are expressly delegated may from time to time be input to or stored within the Collateral Agent by Borrower’s, the terms hereof and thereofE-Vault Provider’s, together with such powers as are reasonably incidental thereto. In furtherancethe Seller’s, and without limiting the generality of Backup Servicer’s or the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, Servicer’s computers and/or computer records including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statementsdiskettes, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, tapes and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing computer software and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereundercomputer systems.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Upstart Holdings, Inc.)
Collateral Administration. (a) The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.312.03, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent8.07.
(ab) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Administrative Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations Assets credited to the Accounts from time to time and Permitted Investments Cash Equivalents 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Borrower, the Collateral Manager Administrative Agent or the Agent Servicer as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrumentUnderlying Instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) in connection with any Monthly Report for each month in which a Payment Date occurs, distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)2.13;
(v) prepare and deliver to the Administrative Agent, each Lender AgentLender, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 12.04 when requested by the Collateral ManagerServicer, the Borrower Borrower, the Administrative Agent or the Agentany Lender, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 2.08 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide such other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day, no later than the Business Day and within three hours after following the Collateral Agent’s Administrator receipt of such request (provided such request is received by 12:00 Noon (New York time) p.m. on such date (otherwise such request will be deemed made on the next succeeding Business Day)), the Collateral Agent Administrator shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations Assets to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e4.02(f) and (g), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral AgentAdministrator’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.102.15) Collateral ObligationsAssets, the Collateral Agent Administrator shall perform, within three hours after no later than the Business Day following the Collateral AgentAdministrator’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) p.m. on such date (otherwise such request will be deemed made on the next succeeding Business Day)) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B2.15(a)(i)(A) and (C) in each case based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Adjusted Principal Balance and the Principal Balance of each Collateral Obligation Asset and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 p.m. on each Business Day as of the close of business on the preceding Business Day.
(bc) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer (if requested by the Servicer) a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Assets and the other Collateral held hereunder which it receives from the related Obligorobligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from (absent the Collateral Manager, prior to the occurrence existence of an Event of Default or a Collateral Manager Event of Default Servicer Termination Event) the Servicer or (during the Agent, after the occurrence continuation of an Event of Default or a Collateral Manager Event of DefaultServicer Termination Event) the Administrative Agent, in which event the Collateral Agent Administrator shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll tangible Collateral (except Collateral in the possession of Verification Agent, Backup Servicer or Agent) will at all times be kept by Borrower or Servicer at the Collateral Agent shall:
locations set forth on Schedule 5.17B hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Borrower hereby agrees to deliver (i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to timeServicer or, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties to the Agent, on or otherwise if prior to the taking date of each Revolving Advance, copies of the Portfolio Documents for each Receivable that is to be added to the Collateral in connection with such Revolving Advance and (ii) at all times on and after June 8, 2020, to the Verification Agent, the Verification Deliverables for the Pledged Receivables at the times and in the manner set forth in the Backup Servicing Agreement. From and after the funding of each Advance hereunder, the originals of all Receivables constituting Collateral in respect of such actionAdvance shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the determination name of Agent or any designee of Agent or Borrower, to verify the Collateral Agentvalidity, (x) amount or any other matter relating to the Collateral. Borrower shall be cooperate fully with Agent in violation an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Applicable Law or contrary Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to any provisions of this Agreement or notify (yi) shall expose the Collateral Agent Bank Partners that the Participation Interests and Bank Partner Receivables related thereto have been assigned to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and (ii) the Collateral Account Obligors that the Receivables have been assigned to Agent does not receive a consent (either positive or negative) from and, in each case, to collect such Participation Interests, Bank Partner Receivables related thereto and Receivables directly in Agent’s own name, for the Agent within 10 Business Days benefit of its receipt of such requestitself and the Lenders, then the Agent shall be deemed and to have declined charge collection costs and expenses, including attorney’s fees, to consent to the relevant actionBorrower.
(iiib) Except as expressly provided herein, the Collateral As and when reasonably requested by Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to after the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (occurrence and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions continuation of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless in Agent’s sole discretion), Borrower will perform the searches described in clauses (i) and (ii) below against Borrower, Intermediate SPE and each Seller: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower, Intermediate SPE or a Responsible Officer Seller is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Intermediate SPE or a Seller maintains its executive offices, a place of business or any assets.
(c) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent has knowledge on such periodic basis as Agent may request in its Permitted Discretion. If requested by Agent upon or at any time after the occurrence and during the continuation of such matter or an Event of Default, Borrower shall execute and deliver to Agent, formal written notice thereof is received by the Collateral Agentassignments of all of its Receivables as Agent may request, together with copies of claims, invoices and/or other information related thereto.
(d) IfBorrower shall direct, or shall cause each Bank Partner, the Servicer and Borrower to direct, each Account Obligor to make payments directly to the Stride Collections Account (solely in performing its duties under this Agreementrespect of Bank Partner Receivables originated by Stride Bank), the General Collections Account, the Collateral Agent is required to decide between alternative courses of action, Account or the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceServicer Physical Payment Address.
(e) Concurrently herewith, In respect of the Agent directs portion of the Collateral consisting of any Receivable which is evidenced by an electronic record that is not a transferable record under Applicable Law, Borrower shall deliver to Servicer or, at the request of Agent, Agent (i) the original Portfolio Documents; and the Collateral (ii) if required by Agent, applications, any related Account Obligor’s acknowledgments and understandings, and other receipts and payment authorization agreements, which shall be delivered, at Borrower’s expense, to Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the Collateral contrary, held in Agent. For the avoidance of doubt’s custody or, if Agent has so requested, Servicer’s or Verification Agent’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Receivable which is evidenced by an electronic record that is a transferable record under Applicable Law, Borrower shall deliver to Agent the control of such transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s rightspossession, protections custody, and immunities provided herein control until all of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Verification Agent or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall apply identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such electronic record by Borrower to Agent.
(f) Borrower hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the Collateral: Borrower agrees to create an electronic file of the computerized information regarding the Collateral and to provide Agent for and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times shall have the right to access and review any actions taken and all Portfolio Documents in Borrower’s or omitted to be taken under the Account Control Agreement Servicer’s possession and any and all data and other related agreements in such capacityinformation relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and other computer software and computer systems.
Appears in 1 contract
Sources: Loan and Security Agreement (CURO Group Holdings Corp.)
Collateral Administration. The (a) All data and other information relating to Accounts or other intangible Collateral Agent shall maintain a database of certain characteristics of at all times be kept by Borrowers and the Collateral on an ongoing basisother Credit Parties at their respective principal and/or chief executive offices and shall not be moved from such locations without (i) providing prior written notice to Administrative Agent, and provide to (ii) except in the Borrowercase of a change in their chief executive office, principal place of business, or the location of Collateral Managerthat is expressly permitted under Section 8.2(d), obtaining the Agent and the Lender Agents certain reportsprior written consent of Administrative Agent, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agentwhich consent shall not be unreasonably withheld.
(ab) In connection therewithBorrowers shall provide prompt written notice to each Person who either is currently an Account Debtor or becomes an Account Debtor at any time following the date of this Agreement that directs each Account Debtor to make payments into the Lockbox, the Collateral Agent shall:
and hereby authorizes Administrative Agent, upon Borrowers’ failure to send such notices within ten (i10) within 15 days after the Effective Datedate of this Agreement (or ten (10) days after the Person becomes an Account Debtor), create to send any and all similar notices to such Person. Administrative Agent reserves the right to notify Account Debtors that Administrative Agent has been granted a Collateral database with respect Lien upon all Accounts.
(c) Borrowers will, and will cause each Subsidiary to, conduct a physical count of the Inventory once per year and, upon the occurrence and during the continuance of a Default or Event of Default, at such other times as Administrative Agent may request, and Borrowers shall, and shall cause each Subsidiary to, provide to Administrative Agent a written accounting of such physical count in form and substance satisfactory to Administrative Agent. Each Borrower will, and will cause each Subsidiary to, maintain at all times a perpetual inventory system. Each Borrower will, and will cause each Subsidiary to, keep adequate records at all times as to the Collateral that has been pledged quantity, source, quality and characteristics of its Inventory and to use commercially reasonable efforts to at all times keep its Inventory in good and marketable condition. In addition to the Collateral Agent for the benefit of the Secured Parties foregoing, from time to time, comprised Administrative Agent may require Borrowers, at the sole cost of the Collateral Obligations credited Borrowers (subject, however, to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements limitations set forth in Section 6.2(e2.2(h)), to obtain and deliver to Administrative Agent appraisal reports in form and substance and from appraisers reasonably satisfactory to Administrative Agent stating the then current fair market values of all or any portion of Inventory owned by each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on Borrower or any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestSubsidiaries.
(bd) The Collateral Agent Borrowers will, and will cause each Subsidiary to, implement and maintain in place cash management arrangements as shall provide be in form and substance satisfactory to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Administrative Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, includinginclude, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate cash management arrangements provided for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder2.11.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Credit and Security Agreement (Seracare Life Sciences Inc)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided such request is received by 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)) and the Collateral Agent maintains or has received any information reasonably requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.109.34) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(ASection 9.34(a)(i)(A), (B) and (C) and based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower each Loan Party hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower each Loan Party hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (GOLUB CAPITAL INVESTMENT Corp)
Collateral Administration. (a) The Collateral Agent Custodian shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Manager and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.312.03, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent8.07.
(ab) In connection therewith, the Collateral Agent Custodian shall:
(i) within 15 days Business Days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Administrative Agent for the benefit of the Secured Parties from time to time, comprised of the Eligible Collateral Obligations credited Asset Information provided to the Accounts from time to time it and Permitted Investments Cash Equivalents 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Custodian by the BorrowerAdministrative Agent, the Borrower or the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent Custodian from time to time or based upon notices received by the Collateral Agent Custodian from the issuer, or trustee or agent bank under an underlying instrumentUnderlying Instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Custodian shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly each Payment Date Report delivered with respect to each month in which a Payment Date occurs in accordance with Section 8.3(a)2.13;
(v) prepare and deliver to the Administrative Agent, each Lender AgentLender, the Borrower and the Collateral Manager (x) on each Business Day, the Daily Report and (y) on each Reporting Date, the Monthly Report Payment Date Report, in each case, and any update pursuant to Section 8.5 12.04 when requested by the Collateral Manager, the Borrower Borrower, the Administrative Agent or the Agentany Lender, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 2.08 and such other information as may be provided to the Collateral Agent Custodian by the Borrower, the Collateral Manager, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Custodian in performing its ordinary Collateral Agent Custodian function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) solely upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’s receipt of such request (provided such request is received by 12:00 Noon noon (New York time) on such date (date, otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations Assets to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e4.02(e) and (f), in each case, based upon information contained in the Collateral Database and information furnished by the Collateral Manager and report the results thereof to the Collateral Manager in a mutually agreed formatformat (which information can be provided in the Daily Report);
(viii) solely upon the Collateral AgentCustodian’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.102.15) Collateral ObligationsAssets, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request perform (provided such request is received by no later than 12:00 Noon noon (New York time) on such date (date, otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B2.15(a)(i)(A) and (C) ), in each case, and based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed formatformat (which information can be provided in the Daily Report); and
(ix) track the Adjusted Principal Balance and the Principal Balance of each Collateral Obligation Asset and report such balances to the Administrative Agent and the Collateral Manager upon requestno later than 12:00 noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(bc) The Collateral Agent Custodian shall provide to the Collateral Manager (if requested by the Collateral Manager) a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Assets and the other Collateral held hereunder which it receives from the related Obligorobligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Custodian be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from (absent the Collateral Manager, prior to the occurrence existence of an Event of Default or a Collateral Manager Event of Default Termination Event) the Collateral Manager or (during the Agent, after the occurrence continuation of an Event of Default or a Collateral Manager Event of DefaultTermination Event) the Administrative Agent, in which event the Collateral Agent Custodian shall only vote, consent or take such other action in accordance with such instructions.
(cd) In addition The Collateral Custodian is hereby authorized to provide instructions to the above:
(i) The Agent and each Secured Party further authorizes Securities Intermediary for purposes of transfers, withdrawals, disbursements from the Collateral Agent to take such action Accounts in accordance with the Payment Date Report or as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted otherwise directed by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower (or the Collateral Manager of their respective obligations to protect on its behalf) or the interest of the Collateral Administrative Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, The Collateral Custodian shall prepare the Agent directs reports in accordance with herein and distributed funds in accordance with the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form Payment Date Report delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacityon each Payment Date.
Appears in 1 contract
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Investment Manager, the Facility Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Investment Manager pursuant to Section 7.7 or from the Lender Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Investment Manager or the Facility Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Investment Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Investment Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Investment Manager, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Investment Manager, the Facility Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Investment Manager, the Facility Agent, any Lender Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Investment Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Investment Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Investment Manager in a mutually agreed format;
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Investment Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Investment Manager, compare the results thereof and report the results to the Collateral Investment Manager in a mutually agreed format; and
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Investment Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Investment Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Investment Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Investment Manager, prior to the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default or the Facility Agent, after the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Investment Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Defaulta Facility Termination Event, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Section 17.4 Section 11.4
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAs and when determined by the Administrative Agent (acting at the direction of the Requisite Lenders) or the Requisite Lenders in its or their reasonable discretion, upon the occurrence and during the continuation of a Default or an Event of Default, the Collateral Administrative Agent shall:
(i) within 15 days after acting at the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit direction of the Secured Parties Requisite Lenders) or the Requisite Lenders may, at the Borrower’s expense, perform UCC, judgment, litigation, tax Lien and other similar searches, in any jurisdictions determined by the Administrative Agent (acting at the direction of the Requisite Lenders) or the Requisite Lenders from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and against any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestLoan Party.
(b) The Collateral Borrower, and Manager, as applicable, shall keep accurate and complete records of the Customer Agreements and all payments and Collections thereon and shall submit such records to the Administrative Agent on such periodic basis (and at least quarterly) as the Administrative Agent (acting at the direction of the Requisite Lenders) or the Requisite Lenders may reasonably request. If requested by the Administrative Agent (acting at the direction of the Requisite Lenders), the Borrower, and each other Loan Party, as applicable, shall provide execute and deliver to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default formal written assignments or a Collateral Manager Event of Defaultallonges, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition form and substance reasonably acceptable to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) Requisite Lenders), of any or all of the Customer Agreements as its agent to execute and deliver all further instruments and documents, and take all further action the Administrative Agent (acting at the written direction of the Requisite Lenders) may reasonably request, together with copies of claims, invoices and/or other information related thereto.
(c) The Borrower shall, upon the Administrative Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent ’s (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be acting at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(iiRequisite Lenders) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) written request upon the written direction occurrence and during the continuation of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of (i) provide prompt written notice to each Customer that the Collateral Agent has knowledge of been granted a Lien on and Security Interest in, upon and to all Customer Agreements payable by such matter or written notice thereof is received Customer and (ii) shall do anything further that may be lawfully required under Applicable Law and requested in writing by the Collateral Agent.
(d) If, Agent or the Requisite Lenders in performing its duties under this Agreement, the Collateral Agent is required their reasonable discretion to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of secure the Collateral Agent’s rights, protections and immunities provided herein shall apply to interest in the Collateral Agent for any actions taken or omitted to be taken under and effectuate the Account Control Agreement and any other related agreements in such capacityintentions of this Agreement.
Appears in 1 contract
Sources: Receivables Facility Loan and Security Agreement (Altice USA, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All Collateral Agent shall:
(iexcept deposit accounts) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may will at all times be invested from time to time, kept by Borrower at its principal office(s) as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e)on Schedule 4.15 and shall not be moved from such locations without the prior written consent of Lender, in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent which consent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will not be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestunreasonably withheld.
(b) The Collateral Agent Borrower shall provide keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the Collateral Manager a copy preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $100,000 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all written notices and communications identified as being sent to it in connection with of its Accounts weekly or daily, which shall include all Accounts that have been created since the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf date of the Collateral Manager in respect last assignment, together with copies of the exercise of any voting claims, invoices or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionsinformation related thereto.
(c) In addition Whether or not an Event of Default has occurred, any of Lender's officers, employees or agents shall have the right, at any time or times hereafter, in the name of Lender or any designee of Lender or Borrower, to verify the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent validity, amount or any other matter relating to take any Accounts by mail, telephone, telegraph or otherwise; provided, however, that Lender shall endeavor to notify Borrower of any such action as agent on its behalf taken by Lender's agent. Borrower shall cooperate fully with Lender in an effort to facilitate and to exercise promptly conclude such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunderverification process.
(iid) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunderTo expedite collection, the Collateral Agent Borrower shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, endeavor in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary first instance to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days make collection of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x))Accounts for Lender. The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party Lender retains the right to so direct at all times after the Collateral Agent, or occurrence and during the Agent. The Collateral Agent shall not be deemed to have notice or knowledge continuance of any matter hereunder, including an Event of Default, unless a Responsible Officer of subject to applicable law regarding Account Debtors, to notify Account Debtors that Accounts have been assigned to Lender and to collect Accounts directly in its own name and to charge the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agentcollection costs and expenses, including attorneys' fees, to Borrower.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithSubject to the prior rights of CapitalSource pursuant to CapitalSource Loan Agreement and Subordination Agreement, all Collateral (except Deposit Accounts) will at all times be kept by the Collateral Agent shall:
applicable Grantor at the locations set forth on Schedule 5.18 to the CapitalSource Loan Agreement and shall not, without thirty (i30) within 15 calendar days after the Effective Date, create a Collateral database with respect prior written notice to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to timeAgent, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponmoved therefrom, and to in any case shall not be moved outside the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestcontinental United States.
(b) The Collateral Agent Grantors shall provide keep accurate and complete records of their Accounts and all payments and collections thereon and shall submit such records to the Collateral Manager a copy of all written notices and communications identified Agent on such periodic bases as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty may request. If requested by the Collateral Agent after an Event of Default, the Grantors Lender shall execute and deliver to the Collateral Agent formal written assignments of all of their Accounts weekly or obligation to take any action on behalf daily as the Collateral Agent may request, including all Accounts created since the date of the Collateral Manager in respect last assignment, together with copies of the exercise of any voting claims, invoices and/or other information related thereto.
(c) Whether or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of not an Event of Default has occurred, any of the Collateral Agent's officers, employees, representatives or a agents shall have the right, at any time during normal business hours, in the name of the Collateral Manager Event of Default or the Agent, or any designee of the Collateral Agent, to verify the validity, amount or any other matter relating to any Accounts of the Grantors. The Grantors shall cooperate fully with the Collateral Agent in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, the Grantors shall endeavor in the first instance to make collection of their Accounts for the Collateral Agent. Subject to the rights of CapitalSource under the CapitalSource Loan Agreement and the Subordination Agreement, the Collateral Agent shall have the right, at all times after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event to notify (i) Account Debtors owing Accounts to the Grantors other than Medicaid/Medicare Account Debtors that their Accounts have been assigned to the Collateral Agent shall only voteand to collect such Accounts directly in its own name and to charge collection costs and expenses, consent or take such other action in accordance with such instructions.
(c) In addition including reasonable attorney's fees, to the above:
Grantors, and (iii) The Agent Medicaid/Medicare Account Debtors that any Grantor has waived any and each Secured Party further authorizes all defenses and counterclaims it may have or could interpose in any such action or procedure brought by the Collateral Agent to take such action as agent on its behalf obtain a court order recognizing the assignment or security interest and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest lien of the Collateral Agent (for in and to any Account or other Collateral and that the benefit of Collateral Agent is seeking or may seek to obtain a court order recognizing the Secured Parties) in the Collateral, including to file financing assignment or security interest and continuation statements in respect lien of the Collateral Agent in accordance with Section 10.1. It is understood and agreed that any to all Accounts and all actions performed other Collateral payable by Medicaid/Medicare Account Debtors.
(e) As and when determined by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agentits reasonable discretion, and the Collateral Agent shall have no responsibility will perform the searches described in clauses (i) and (ii) below against the Grantors (the results of which are to be consistent with the Grantors' representations and warranties under this Agreement), all at the Company's expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where the Company and/or any other Grantor is incorporated or liability organized or maintains its executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereundereach jurisdiction searched under clause (i) below.
(iif) The Agent may direct Subject to the prior rights of CapitalSource under the CapitalSource Loan Agreement and the Subordination Agreement, upon the Collateral Agent's request after an Event of Default shall have occurred and be continuing, the Grantors (i) shall provide prompt written notice to each Account Debtor (other than Medicaid/Medicare Account Debtors) that the Collateral Agent in writing has been granted a lien and security interest in, upon and to take all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to a lockbox account under the control and dominion of the Collateral Agent or its representative, and each Grantor hereby authorizes the Collateral Agent, upon any failure by any Grantor to send such incidental action hereundernotices and directions within ten (10) calendar days after the Collateral Agent's request, to send any and all similar notices and directions to such Account Debtors, and (ii) shall do anything further that may be lawfully required by the Collateral Agent to secure the Collateral Agent and effectuate the intentions of this Agreement. With respect to other actions which are incidental to At the actions specifically delegated Collateral Agent's request, each Grantor shall immediately deliver to the Collateral Agent hereunder, or its representative all items for which the Collateral Agent shall not be required or its representative must receive possession to take any such incidental action hereunderobtain a perfected security interest and all notes, but shall be required to act or to refrain from acting (certificates, and shall be fully protected in acting or refraining from acting) upon the written direction documents of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agenttitle, any Secured Parties or otherwise if the taking of such actionchattel paper, in the determination of the Collateral Agentwarehouse receipts, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such requestinstruments, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacitysimilar instruments constituting Collateral.
Appears in 1 contract
Sources: Subordinated Pledge and Security Agreement (Opticare Health Systems Inc)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All Collateral Agent shall:
(i) within 15 days after the Effective Date, create a except Deposit Accounts and Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may possession of Agent and Inventory sold in the ordinary course of business) will at all times be invested kept by the Credit Parties at the locations set forth on Schedule 5.20B hereto or in transit to and from time to timesuch locations (other than immaterial property, as provided determined by Agent in this Agreement its Permitted Discretion, whose nature and use reasonably requires its location at other sites), and shall not be moved therefrom other than to another location set forth on Schedule 5.20B hereto or previously (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted next monthly report) disclosed to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 6.1(b)(i), and such other information as in any case shall not be moved outside the continental United States; provided, however, that Equipment required for demonstration purposes (“Demonstration Equipment”) may be moved outside the continental United States provided that at no time shall the fair value of such Demonstration Equipment exceed $1,000,000. After the occurrence and during the continuance of an Event of Default, any of Agent’s officers, employees, representatives or agents shall have the right, at any time during normal business hours, in the name of Agent, or any designee of Agent or the Credit Parties, to verify the validity, amount or any other matter relating to the Collateral Collateral. The Credit Parties shall cooperate fully with Agent by in an effort to facilitate and promptly conclude such verification process. In addition to and notwithstanding any provision of any Loan Document, Agent shall have the Borrowerright at all times after the occurrence and during the continuance of an Event of Default to notify Persons owing Accounts to any Credit Party that their Accounts have been assigned to Agent and to collect such Accounts directly in its own name and to charge collection costs and expenses, including reasonable attorneys’ fees, to the Collateral Manager, Credit Parties. The Credit Parties shall endeavor in the first instance to make collection of their respective Accounts for Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to for the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request account of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestLenders.
(b) The Collateral As and when determined by Agent shall provide in its Permitted Discretion, Agent will perform the searches described in clauses (i) and (ii) below against the Credit Parties (the results of which are to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection be consistent with the Collateral Obligations Credit Parties’ representations and the other Collateral held hereunder which it receives from the related Obligorwarranties under this Agreement), participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation all at Borrowers’ expense on up to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, four occasions per year unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event has occurred and is continuing (in which case all shall be at Borrowers’ expense without limitation as to frequency): (i) UCC searches with the Secretary of Default or the AgentState and local filing offices of each jurisdiction where any Credit Party is organized and/or (ii) UCC, after the occurrence of an Event of Default or a Collateral Manager Event of Defaultjudgment, federal tax lien and corporate and partnership tax lien searches, in which event the Collateral Agent shall only voteeach jurisdiction where each Credit Party maintains its respective executive offices, consent a place of business or take such other action in accordance with such instructionsassets.
(c) In addition to Credit Parties shall notify Agent of the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtheranceexistence of, and without limiting the generality of the foregoingpromptly deliver to Agent upon its request, each Secured Party hereby appoints the Collateral all items for which Agent (acting at the direction of the Agent) as its agent must receive possession to execute obtain a perfected Lien and deliver security interest and all further instruments and documentsnotes, certificates, and take all further action (at the written direction documents of the Agent) that the Agent deems necessary or desirable in order to perfecttitle, protect or more fully evidence the security interests granted by the Borrower hereunderChattel Paper, or to enable any of them to exercise or enforce any of their respective rights hereunderwarehouse receipts, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arisingInstruments, and such any other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the similar Instruments constituting Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, each case to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge already in possession of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) IfCredit Parties shall, in performing its duties under this Agreementand shall cause their Subsidiaries to, keep records of the Collateral and all payments and collections thereon that are accurate and complete in all material respects and after the occurrence and during the continuance of an Event of Default shall submit such records to Agent is required to decide between alternative courses of action, the Collateral on such periodic bases as Agent may request written instructions from the Agent as to the course of action desired by itin its Permitted Discretion. If requested by Agent upon or at any time after the Collateral occurrence and during the continuation of an Event of Default, Credit Parties shall execute and deliver to Agent, and shall cause each of their Subsidiaries to execute and deliver, formal written assignments of all of their respective Accounts as Agent does not receive such instructions within two Business Days after it has requested themmay request, including all Accounts created since the Collateral Agent maydate of the last assignment, but shall be under no duty totogether with copies of claims, take or refrain from taking any such courses of actioninvoices and other information related thereto. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to To the extent it has already, in good faith, taken or committed itself to take, action inconsistent with that collections from such instructions. The Collateral Agent shall be entitled to rely on assigned Accounts exceed 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all amount of the Collateral Agent’s rightsObligations, protections and immunities provided herein such excess amount shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements not accrue interest in such capacityfavor of Credit Parties.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Firearms Training Systems Inc)
Collateral Administration. The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Borrower, the Collateral Manager Servicer or the Agent as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report which can be reasonably prepared to the Agent or the Collateral Manager Servicer upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ixvi) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager Servicer upon request.
(b) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Agent, the Collateral Custodian nor the Collateral Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Servicer Event of Default, subject to Section 13.3(b), in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions. In the absence of such instructions, no action will be taken.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting solely at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (solely at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by a Responsible Officer of the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent or the Collateral Administrator is required to decide between alternative courses of action, the Collateral Agent or the Collateral Administrator, as the case may be, may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent or the Collateral Administrator, as the case may be, does not receive such instructions within two Business Days after it has requested them, the Collateral Agent or the Collateral Administrator, as the case may be, may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent or the Collateral Administrator, as the case may be, shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent and 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other Transaction Documents or related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Collateral Administration. (a) The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.312.03, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent8.03(e).
(ab) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Administrative Agent for the benefit of the Secured Parties from time to timetime based upon information and data received from the Borrower or the Servicer on its behalf, comprised of the Collateral Obligations Assets credited to the Accounts from time to time and Permitted Investments Cash Equivalents 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Administrative Agent, the Borrower, the Collateral Manager any Permitted Subsidiary or the Agent Servicer as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrumentUnderlying Instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format[reserved];
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format[reserved]; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower each Loan Party hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove; provided, however, that, the Collateral Agent shall have no duty or obligation to prepare or file any such financing or continuation statement and such obligation shall remain with the Borrower. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower each Loan Party hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including including, for the avoidance of doubt, an Event of DefaultDefault or any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Collateral Administration. (a) The Collateral Agent Custodian shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.312.03, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent8.07.
(ab) In connection therewith, the Collateral Agent Custodian shall:
(i) within 15 days after five (5) Business Days of the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Administrative Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations Assets credited to the Accounts from time to time and Permitted Investments Cash Equivalents 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Custodian by the BorrowerAdministrative Agent, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent Custodian from time to time or based upon notices received by the Collateral Agent Custodian from the issuer, or trustee or agent bank under an underlying instrumentUnderlying Instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Custodian shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such each Monthly Report delivered with respect to each month in which a Payment Date occurs in accordance with Section 8.3(a)2.13;
(v) prepare and deliver to the Administrative Agent, each Lender AgentLender, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 12.04 when requested by the Collateral ManagerServicer, the Borrower Borrower, the Administrative Agent or the Agentany Lender, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 2.08 and such other information as may be provided to the Collateral Agent Custodian by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Custodian in performing its ordinary Collateral Agent Custodian function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral AgentCustodian’s receipt of such request (provided such request is received by 12:00 Noon noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations Assets to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e4.02(f) and (g), in each case, based upon information contained in the Collateral Database and information furnished by the Servicer and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral AgentCustodian’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.102.15) Collateral ObligationsAssets, the Collateral Agent shall perform, within three hours after the Collateral AgentCustodian’s receipt of such request (provided such request is received by no later than 12:00 Noon noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B2.15(a)(i)(A) and (C) ), in each case, and based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Adjusted Principal Balance and the Principal Balance of each Collateral Obligation Asset and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(bc) The Collateral Agent Custodian shall provide to the Collateral Manager Servicer (if requested by the Servicer) a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Assets and the other Collateral held hereunder which it receives from the related Obligorobligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Custodian be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from (absent the Collateral Manager, prior to the occurrence existence of an Event of Default or a Collateral Manager Event of Default Servicer Termination Event) the Servicer or (during the Agent, after the occurrence continuation of an Event of Default or a Collateral Manager Event of DefaultServicer Termination Event) the Administrative Agent, in which event the Collateral Agent Custodian shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The Collateral Agent Custodian shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Manager and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3paragraph, based upon information and data received from the Borrower and/or Borrower, the Collateral Manager pursuant to Section 7.7 or from and the Lender Agents and/or the Administrative Agent.
(a) . In connection therewith, the Collateral Agent Custodian shall:
(i) within 15 30 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations Loan Assets credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Custodian by the Borrower, Borrower or the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent Custodian from time to time or based upon notices received by the Collateral Agent Custodian from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections to the applicable account and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and the Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;Day; and
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Manager on the 15th of each Reporting Datemonth, commencing in January 2025, the Monthly Report and any update pursuant monthly report substantially in the form of agreed to Section 8.5 when requested by the and the Administrative Agent, Collateral Manager, Manager and the Borrower or the AgentCustodian, on the basis of the information contained in the Collateral Database as of the applicable Determination Datelast day of the prior calendar month, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent Custodian by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Administrative Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Brightwood Capital Corp I)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll Collateral (except Deposit Accounts and Collateral having an aggregate value of $50,000 or less at any one location) will at all times be kept by Borrower at the locations set forth on Schedule 5.4 hereto, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties which may be amended from time to time, comprised and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom, and in any case shall not be moved outside the continental United States. Whether or not an Event of Default has occurred, any of the Collateral Obligations credited to Agent's officers, employees, representatives or agents shall have the Accounts from right, at any time to time and Permitted Investments in which amounts held during normal business hours, in the Accounts may be invested from time to time, as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition name of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent designee of Agent, or Borrower, to verify the validity, amount or any Lender;
(vi) provide other such information with respect matter relating to the Collateral granted Collateral. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. Notwithstanding anything in this subsection to the Collateral contrary, Agent shall have the right at all times after the occurrence and during the continuation of an Event of Default to notify Persons owing Accounts to Borrower that their Accounts have been assigned to Agent and not released as may be routinely maintained by the Collateral Agent to collect such Accounts directly in performing its ordinary Collateral Agent function pursuant hereunderown name and to charge collection costs and expenses, as the including reasonable attorney's fees, to Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral As and when determined by Agent shall provide in its Permitted Discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower or any Guarantor (the results of which are to the Collateral Manager be consistent with Borrower's representations and warranties under this Agreement), on a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actionsquarterly basis at Borrower's expense, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event has occurred and is continuing in which case such searches shall be conducted as often as Agent deems reasonably appropriate at Borrower's expense: (i) UCC searches with the Secretary of Default or the AgentState and local filing offices of each jurisdiction where Borrower and/or any Guarantors are organized; and (ii) judgment, after the occurrence of an Event of Default or a Collateral Manager Event of Defaultfederal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above, and in any jurisdiction where Borrower or Guarantors maintain their respective offices or place of business or material assets to the extent that the UCC would permit a filing in such jurisdiction to attach a security interest in or Lien upon any Collateral. Agent will
(i) upon Borrower's request and at Borrower's expense, provide copies of any such searches to Borrower and (ii) will use a search service with which event Agent has a discount arrangement in an effort to minimize the Collateral Agent shall only vote, consent or take expense of such other action in accordance with such instructionssearches.
(c) In addition Upon Agent's request, Borrower shall immediately deliver to the above:
(i) The Agent all items for which Lender must receive possession to obtain a perfected Lien and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereofall notes, together with such powers as are reasonably incidental thereto. In furtherancecertificates, and without limiting the generality documents of the foregoingtitle, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documentsChattel Paper, warehouse receipts, Instruments, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other similar instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the constituting Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(iid) The Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Agent on such periodic bases as Agent may direct the Collateral Agent request in writing to take any such incidental action hereunderits Permitted Discretion. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunderIn addition, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected if Accounts of Borrower in acting or refraining from acting) upon the written direction an aggregate face amount in excess of $500,000 become ineligible because they fall within one of the Agent; provided that specified categories of ineligibility set forth in the Collateral definition of Eligible Billed Receivables or Eligible Unbilled Receivables, Borrower shall notify Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination occurrence within two (2) Business Days following its discovery of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent such occurrence and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent Borrowing Base shall thereupon be deemed adjusted to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon reflect such occurrence, . After the Collateral Agent shall act in accordance with occurrence and during the written instructions continuation of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer and upon Agent's request, Borrower shall execute and deliver to Agent formal written assignments of all of its Accounts weekly or daily as Agent may request, including all Accounts created since the date of the Collateral Agent has knowledge last assignment, together with copies of such matter or written notice thereof is received by the Collateral Agent.
(d) Ifclaims, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceinvoices and/or other information related thereto.
(e) Concurrently herewithBorrower (i) shall provide prompt written notice to its current bank to transfer all items, the Agent directs the Collateral Agent collections and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered remittances to the Collateral Concentration Account, and to any Account Debtor not remitting to the Blocked Account, to do so promptly, and (ii) after the occurrence and during the continuation of an Event of Default, and upon Agent's request, shall provide prompt written notice to each Account Debtor that Agent has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor, and shall direct each Account Debtor to make payments directly to Lender's Concentration Account. For Borrower hereby authorizes Agent, for purposes of clause (i) hereof, upon any failure to send such notices and directions within twenty (20) calendar days after the avoidance date of doubtthis Agreement (or twenty (20) calendar days after the Person becomes an Account Debtor), and for purposes of clause (ii) hereof, promptly following the occurrence and continuation of such Event of Default, to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Agent to secure Agent, for the benefit of itself and Lenders, and to effectuate the intentions of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacityLoan Documents.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (America Service Group Inc /De)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Investment Manager and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Investment Manager pursuant to Section 7.7 or from the Lender Agents and/or the Administrative Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Investment Manager or the Administrative Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Investment Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Investment Manager on each Reporting Date, (A) the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Investment Manager, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Investment Manager, the Agent, any Lender Administrative Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Investment Manager, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Investment Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Investment Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Investment Manager in a mutually agreed format;; and
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Investment Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Investment Manager, compare the results thereof and report the results to the Collateral Investment Manager in a mutually agreed format; and.
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Investment Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Investment Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Investment Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Investment Manager, prior to the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default or the Administrative Agent, after the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Investment Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Defaulta Facility Termination Event, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Administrative Agent and the Lender Agents Lenders certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents Lenders and/or the Administrative Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Collateral Report in accordance with Section 8.3(a)8.3;
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Collateral Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral, provided that such Collateral granted to the Collateral Agent and has not released been released, as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral Agent’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), and so long as the Collateral Agent maintains or has received any information reasonably requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and (iii) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer and the Administrative Agent a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Administrative Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent (who shall promptly, but in no event later than the following second Business Day, deliver notice thereof to the Administrative Agent).
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Collateral Administration. (a) The Collateral Agent Custodian shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.312.03, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent8.07.
(ab) In connection therewith, the Collateral Agent Custodian shall:
(i) within 15 days after five (5) Business Days of the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Administrative Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations Assets credited to the Accounts from time to time and Permitted Investments Cash Equivalents 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Custodian by the BorrowerAdministrative Agent, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent Custodian from time to time or based upon notices received by the Collateral Agent Custodian from the issuer, or trustee or agent bank under an underlying instrumentUnderlying Instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Custodian shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such each Monthly Report delivered with respect to each month in which a Payment Date occurs in accordance with Section 8.3(a);2.13; USActive 61045446.861045446.10 -155-
(v) prepare and deliver to the Administrative Agent, each Lender AgentLender, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 12.04 when requested by the Collateral ManagerServicer, the Borrower Borrower, the Administrative Agent or the Agentany Lender, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 2.08 and such other information as may be provided to the Collateral Agent Custodian by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Custodian in performing its ordinary Collateral Agent Custodian function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral AgentCustodian’s receipt of such request (provided such request is received by 12:00 Noon noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations Assets to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e4.02(f) and (g), in each case, based upon information contained in the Collateral Database and information furnished by the Servicer and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral AgentCustodian’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.102.15) Collateral ObligationsAssets, the Collateral Agent shall perform, within three hours after the Collateral AgentCustodian’s receipt of such request (provided such request is received by no later than 12:00 Noon noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B2.15(a)(i)(A) and (C) ), in each case, and based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Adjusted Principal Balance and the Principal Balance of each Collateral Obligation Asset and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(bc) The Collateral Agent Custodian shall provide to the Collateral Manager Servicer (if requested by the Servicer) a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Assets and the other Collateral held hereunder which it receives from the related Obligorobligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Custodian be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from (absent the Collateral Manager, prior to the occurrence existence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.Servicer Termination
Appears in 1 contract
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) All tangible Collateral (except tangible Collateral in the possession of Backup Servicer) will at all times be kept by Borrower or Servicer at the locations set forth in Section 5.15 of Schedule A attached hereto, and shall not, without thirty (30) calendar days prior written notice to Administrative Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. All Receivables constituting Collateral, shall, regardless of their location, be deemed to be under Administrative Agent’s dominion and control and deemed to be in Administrative Agent’s possession. In connection therewithaddition to any provision of any Transaction Document, Administrative Agent shall have the Collateral Agent shall:
right at all times after the occurrence and during the continuance of an Event of Default (i) within 15 days after the Effective Dateto notify Account Debtors and/or Servicer that all Receivables of Borrower including, create a Collateral database with respect if to the Collateral Account Debtors, their Receivables have been assigned to Administrative Agent and that has been pledged all collections from such Receivables shall be paid directly to the Collateral Agent Administrative Agent, for the benefit of the Secured Parties from time Lenders, and (ii) to timecharge Borrower for any collection costs and expenses, comprised including reasonable attorney’s fees, incurred by Administrative Agent.
(b) As and when determined by Administrative Agent in its sole discretion, Administrative Agent may perform the searches described in clauses (i) and (ii) below against Borrower, Seller and Originators: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where any such Person is organized; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where any such Person maintains their executive offices, a place of business or any assets.
(c) Borrower shall, or shall require Servicer to, keep accurate and complete records of the Collateral Obligations credited and all payments and collections thereon and shall submit to the Accounts from time to time and Permitted 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 Administrative Agent such records on a such periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;in its reasonable discretion.
(viid) Borrower shall, or shall require Servicer to, upon the receipt of written request notice from Administrative Agent following the occurrence and continuation of an Event of Default, cooperate with Administrative Agent, if Administrative Agent elects to attach or associate in electronic format a legend, stamp, notation or other identification to all or any portion of the Portfolio Documents to evidence the pledge thereof to Administrative Agent, such legend, stamp, notation or other identification shall be in form and substance acceptable to Administrative Agent in its sole discretion.
(e) In respect of the portion of the Collateral Manager on consisting of any Business Day and within three hours after Receivable which is evidenced by an electronic record that is a “transferable record” as defined in Section 16 of the Collateral Uniform Electronic Transactions Act (as in effect in any relevant jurisdiction), Borrower shall, or shall require each Servicer to, deliver to Administrative Agent the control of such transferable electronic record in accordance with Applicable Law, including the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction (to ensure, among other things, that Administrative Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Administrative Agent at its address as set forth herein or as otherwise specified by Administrative Agent and, except as otherwise expressly provided herein to the contrary, held in Administrative Agent’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)possession, the Collateral Agent shall perform the following functions: as custody, and control until all of the date Obligations have been fully satisfied or Administrative Agent expressly agrees to release such documents. Alternatively, Administrative Agent, may elect for the Collateral Manager commits Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Administrative Agent during such period of time. Borrower shall identify (or shall cause Servicer to identify) on the related electronic record the pledge of such Receivable by Borrower to purchase Administrative Agent.
(f) Borrower hereby agrees to, and shall require ▇▇▇▇▇, Seller, Originator, and/or Servicer, to take all applicable protective actions to prevent destruction of records pertaining to the Collateral Obligations in accordance with each Servicing Agreement. Subject to be included in the Collateral, perform a pro forma calculation of the tests and other requirements limitations set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day 6.7 of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the Backup Servicing Agreement, as applicable, Administrative Agent at all times shall have the right to access and review any and all Portfolio Documents in Borrower’s, Backup Servicer’s, Originator’s and/or Servicer’s possession and any and all data and other Transaction information relating to Portfolio Documents as are expressly delegated may from time to the Collateral Agent by the terms hereof and thereoftime be input to or stored within Borrower’s, together with such powers as are reasonably incidental thereto. In furtheranceBackup Servicer’s, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary Originator’s or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, Servicer’s computers and/or computer records including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statementsdiskettes, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, tapes and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing computer software and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereundercomputer systems.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (Enova International, Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Facility Agent and the Lender Agents Lenders (via the Collateral Agent’s Website) certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents Lenders and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Collateral Report in accordance with Section 8.3(a)8.3;
(v) prepare and deliver or make available via the Collateral Agent’s Website to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Collateral Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral, provided that such Collateral granted to the Collateral Agent and has not released been released, as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any the Business Day and within three hours after following receipt by the Collateral Agent’s receipt Agent 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)), and so long as the Collateral Agent maintains or the Servicer has provided any information reasonably needed and requested by the Collateral Agent, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any the Business Day following receipt by the Collateral Agent of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after on the Business Day following the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)) and so long as the Collateral Agent maintains or the servicer has provided any information reasonably needed and requested by the Collateral Agent, a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and (iii) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer and the Facility Agent a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such action incidental action to the powers granted to the Collateral Agent hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent (who shall promptly, but in no event later than the following fourth Business Day, deliver notice thereof to the Facility Agent).
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Capital Southwest Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the All Collateral Agent shall:
(iexcept deposit accounts) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may will at all times be invested from time to time, kept by Borrower at its principal office(s) as provided in this Agreement (the “Collateral Database”);
(ii) update the Collateral Database on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e)on Schedule 4.15 hereto and shall not, in each casewithout the prior written approval of Lender, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestmoved therefrom.
(b) The Collateral Agent Borrower shall provide keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Lender on such periodic basis as Lender shall request a sales and collections report for the Collateral Manager a copy preceding period, in form satisfactory to Lender. In addition, if Accounts in an aggregate face amount in excess of $250,000.00 become ineligible because they fall within one of the specified categories of ineligibility set forth in the definition of Qualified Accounts or otherwise, Borrower shall notify Lender of such occurrence on the first Business Day following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If requested by Lender, Borrower shall execute and deliver to Lender formal written assignments of all written notices and communications identified as being sent to it in connection with of its Accounts weekly or daily, which shall include all Accounts that have been created since the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf date of the Collateral Manager in respect last assignment, together with copies of the exercise of any voting claims, invoices or consent rights, other information related thereto.
(c) Whether or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of not an Event of Default has occurred, any of Lender's officers, employees or a Collateral Manager Event agents shall have the right, at any time or times hereafter, in the name of Default Lender, any designee of Lender or Borrower, to verify the Agentvalidity, amount or any other matter relating to any Accounts by mail, telephone, telegraph or otherwise. Borrower shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, Borrower shall endeavor in the first instance to make collection of its Accounts for Lender. Lender retains the right at all times after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only votesubject to applicable law regarding Medicaid/Medicare Account Debtors, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent notify Account Debtors that Accounts have been assigned to take such action as agent on its behalf Lender and to exercise such powers under this Agreement collect Accounts directly in its own name and to charge the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof collection costs and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateralexpenses, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Partyattorneys' fees, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral AgentBorrower.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (Intensiva Healthcare Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) All tangible Collateral (except Collateral in the possession of Lender) will at all times be kept by Borrowers at the principal offices of Borrowers and shall not, without thirty (30) calendar days prior written notice to Lender, be moved therefrom to another location as specified in such notice, and in any case shall not be moved outside the continental United States. All receivables constituting Collateral shall, regardless of their location, be deemed to be under Lender’s dominion and control and the related receivable documents shall be deemed to be in Lender’s possession and control. Any of Lender’s officers, employees, representatives or agents shall have the right upon reasonable written notice (email shall suffice), at any time during normal business hours, in the name of Lender or any designee of Lender, to verify the validity, amount or any other matter relating to the Collateral. Borrowers shall cooperate fully with Lender in an effort to facilitate and promptly conclude such verification process. In connection therewithaddition to any provision of any Loan Document, Lender shall have the Collateral Agent shall:
right at all times after the occurrence and during the continuance of an Event of Default (i) within 15 days after the Effective Dateto notify Account Debtors that all receivables of Borrowers including, create a Collateral database with respect if to the Collateral Account Debtors, their receivables have been assigned to Lender and that has been pledged all collections from such receivables shall be paid directly to the Collateral Agent for the benefit of the Secured Parties from time to timeLender, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis to charge Borrowers for changes any collection costs and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to timeexpenses, in each case based uponincluding reasonable attorney’s fees, and to the extent of, information furnished to the Collateral Agent incurred by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to As and when determined by Lender in its sole discretion, Lender will perform the Collateral Manager a copy of all written notices searches described in clauses (i) and communications identified as being sent to it in connection (ii) below against Borrower: (i) UCC searches with the Collateral Obligations Secretary of State and the other Collateral held hereunder which it receives from the related Obligorlocal filing offices of each jurisdiction where such Borrowers is organized; (ii) judgment, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Defaultfederal tax lien and corporate and partnership tax lien searches, in which event the Collateral Agent shall only voteeach jurisdiction where Borrowers maintains its jurisdiction of organization, consent executive offices, a place of business or take such other action in accordance with such instructionsany assets; and (iii) U.S. Bankruptcy court searches.
(c) In addition to the above:
(i) The Agent Borrowers shall keep accurate and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality complete records of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including and all payments and collections thereon and shall submit such records to file financing Lender on such periodic basis as Lender may request in writing (email shall suffice) in its reasonable discretion. Upon the receipt of written notice from Lender following the occurrence and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless Borrowers shall cooperate and cause Borrowers to cooperate with Lender, and if Lender elects to attach or associate in electronic format a Responsible Officer notation, legend, stamp or other identification to all or any portion of the Collateral Agent has knowledge of to evidence the pledge thereof to Lender, such matter notation, legend, stamp or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but other identification shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except form and substance acceptable to the extent it has already, Lender in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advicesole discretion.
(e) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide (i) access to the information in such database in electronic format to Borrower, the Collateral ManagerServicer, the each Agent and the Lender Agents Facility Agent and (ii) certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent and any additional Collateral from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Pass-Through Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer, each Agent and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver or make available via the Collateral Agent’s Website to the Facility Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower Borrower, any Agent or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any LenderAgent;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after no later than the Business Day following the Collateral AgentAdministrator’s receipt of such request (provided such request is received by 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)) and so long as the Collateral Administrator maintains or has received any information reasonably requested by it or necessary to make the calculations requested, the Collateral Agent Administrator shall perform the following functions: as of the date notified in writing by the Collateral Manager Servicer that the Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral AgentAdministrator’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent Administrator shall perform, within three hours after no later than the Business Day following the Collateral AgentAdministrator’s receipt of such request (provided such request is received by no later than 12:00 Noon p.m. (New York time) )), and so long as the Collateral Administrator maintains or has received any information requested by it or necessary to make the calculations requested, on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and (iii) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and;
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Agent, the Collateral Custodian nor the Collateral Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent and the Collateral Administrator to take such action actions as agent agents on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent or the Collateral Administrator, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent or the Collateral Administrator in writing to take any such action incidental action to powers granted to the Collateral Agent hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent or the Collateral Administrator, as applicable, hereunder, the Collateral Agent and the Collateral Administrator shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent and the Collateral Administrator shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the sole determination of the Collateral AgentAgent or the Collateral Administrator, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent or the Collateral Administrator, as applicable, to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent or the Collateral Administrator requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, neither the Collateral Agent nor the Collateral Administrator shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Neither the Collateral Administrator nor the Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Neither the Collateral Administrator nor the Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent Administrator or Collateral Agent, as applicable, has knowledge of such matter or written notice thereof is received by the Collateral Administrator or the Collateral Agent, respectively.
(d) If, in performing its duties under this Agreement, the Collateral Agent or the Collateral Administrator is required to decide between alternative courses of action, the Collateral Agent or the Collateral Administrator, as the case may be, may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent or the Collateral Administrator, as the case may be, does not receive such instructions within two Business Days after it has requested them, the Collateral Agent or the Collateral Administrator, as the case may be, may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent or the Collateral Administrator, as the case may be, shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent and 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll tangible Collateral, if any, (except tangible Collateral in the Collateral possession of Backup Servicer, Servicer, E-Vault Provider, Verification Agent shall:
or Agent) will at all times be kept by Borrower at the locations set forth in Section 5.15 of Schedule A, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Borrower hereby agrees to deliver (or cause the E-Vault Provider to deliver or make available, as applicable), on or prior to the date of each Revolving Advance, (i) within 15 days after the Effective Date, create a Collateral database with respect Verification Deliverables to the Backup Servicer for each Receivable that is to be added to the Collateral in connection with such Revolving Advance and (ii) access to the Portfolio Documents to the Verification Agent for each Receivable that has been pledged is to be added to the Collateral in connection with such Revolving Advance. All Receivables constituting Collateral, shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default (i) to notify Account Debtors and/or Servicer that all Receivables of Borrower including, if to Account Debtors, their Receivables have been assigned to Agent and that all collections from such Receivables shall be paid directly to Agent, for the benefit of itself and the other Secured Parties from time to timeParties, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis to charge Borrower for changes any collection costs and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to timeexpenses, in each case based uponincluding reasonable attorney’s fees, and to the extent of, information furnished to the Collateral Agent incurred by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral As and when reasonably determined by Agent, Agent shall provide to will perform the Collateral Manager a copy of all written notices searches described in clauses (i) and communications identified as being sent to it in connection (ii) below against Borrower and Originator: (i) UCC searches with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf Secretary of State of the Collateral Manager in respect of jurisdiction where such Person is organized; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches against the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of DefaultBorrower, in which event each jurisdiction where the Collateral Agent shall only vote, consent or take such other action in accordance with such instructionsBorrower maintains its executive office.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereundershall, or shall use commercially reasonable efforts to enable any of them to exercise or enforce any of their respective rights hereundercause Servicer to, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any keep accurate and complete records of the Collateral Obligations now existing or hereafter arising, and all payments and collections thereon and shall submit to Agent such other instruments or notices, records on such periodic basis as Agent may be necessary or appropriate for request in its reasonable discretion.
(d) In respect of the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest portion of the Collateral consisting of any Receivable which is evidenced by an electronic record that is a “transferable record” as defined in Section 16 of the Uniform Electronic Transactions Act (as in effect in any relevant jurisdiction), Borrower shall, or shall use commercially reasonable efforts to cause Originator and/or Servicer and/or E-Vault Provider to, deliver to Agent the control of such transferable electronic record in accordance with Applicable Law, including the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied, the Agent is required hereunder or by Applicable Law to release such documents or Agent otherwise expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the benefit Servicer, Originator, E-Vault Provider or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or shall use commercially reasonable efforts to cause Originator and/or Servicer and/or E-Vault Provider to identify) on the Secured Partiesrelated electronic record the pledge of such Receivable by Borrower to Agent.
(e) in the CollateralBorrower hereby agrees to, including and shall use commercially reasonable efforts to file financing and continuation statements in respect cause Originator and/or Servicer to, take all applicable protective actions to prevent destruction of records pertaining to the Collateral in accordance with the Servicing Agreement and Multi-Party Agreement. Subject to the limitations set forth in Section 10.1. It is understood 6.7 of this Agreement, the Multi-Party Agreement and agreed that the Backup Servicing Agreement, as applicable, Agent at all times shall have the right to access and review any and all actions performed by the Collateral Agent Portfolio Documents in connection with this Section 11.3(c)(i) shall Borrower’s, Backup Servicer’s, Originator’s, E-Vault Provider and/or Servicer’s possession and any and all data and other information relating to Portfolio Documents as may from time to time be at the written direction of the Agentinput to or stored within Borrower’s, Backup Servicer’s, Originator’s, E-Vault Provider’s or Servicer’s computers and/or computer records including diskettes, tapes and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunderother computer software and computer systems.
(iif) The Agent may direct During the Collateral Agent in writing to take existence of any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunderEvent of Default, at Agent’s request, Borrower shall execute or obtain, at its expense, the Collateral notation or assignment of Liens in favor of Borrower or Agent shall not be required on Titles for Financed Vehicles in form sufficient to take any effect such incidental action hereunder, but shall be required to act notation or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, assignment in the determination jurisdiction in which the applicable Title and lien notation documents have been issued. Agent is hereby authorized, after the occurrence and during the continuance of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer to give directions under and exercise its rights under the Title Administrator Agreement and/or Nominee Agreement and/or use the powers of the Collateral Agent has knowledge of attorney granted pursuant to this Agreement and/or any other Loan Documents to execute any and all such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is Title documents that may be required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired be executed by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take Originator or refrain from taking any such courses of action. The Collateral Agent shall act Borrower in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceconnection therewith.
(e) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. (a) The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.312.03, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent8.03(e).
(ab) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Administrative Agent for the benefit of the Secured Parties from time to timetime based upon information and data received from the Borrower or the Servicer on its behalf, comprised of the Collateral Obligations Assets credited to the Accounts from time to time and Permitted Investments Cash Equivalents 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Administrative Agent, the Borrower, the Collateral Manager any Permitted Subsidiary or the Agent Servicer as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrumentUnderlying Instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) in connection with any Monthly Report for each month in which a Payment Date occurs, distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)2.13;
(v) prepare and deliver to the Administrative Agent, each Lender AgentLender, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 12.04 when requested by the Collateral ManagerServicer, the Borrower Borrower, the Administrative Agent or the Agentany Lender, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 2.08 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;; and
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance outstanding principal balance of each Collateral Obligation Asset and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 p.m. on each Business Day as of the close of business on the preceding Business Day.
(bc) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Assets and the other Collateral held hereunder which it receives from the related Obligorobligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Administrative Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent Administrator shall only vote, consent or take such other action in accordance with such instructions.
(cd) In addition The Collateral Administrator is hereby authorized to provide instructions to the above:
(i) The Agent Securities Intermediary for purposes of transfers, withdrawals and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) disbursements from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act Accounts in accordance with the written instructions of Monthly Report or as otherwise directed by the Agent pursuant to clause Borrower (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice Servicer on its behalf) or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceprovided herein.
(e) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent (via the Collateral Agent’s website) certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Borrower Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed formatreserved;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed formatreserved; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower each Loan Party hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove; provided that, the Collateral Agent shall have no duty or obligation to prepare or file any such financing or continuation statements and such obligation shall remain with the Borrower. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower each Loan Party hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including including, for the avoidance of doubt, an Event of DefaultDefault or any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Administrative Agent and the Lender Agents Lenders certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents Lenders and/or the Administrative Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Collateral Report in accordance with Section 8.3(a)8.3;
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Collateral Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide other such information with respect to the Collateral, provided that such Collateral granted to the Collateral Agent and has not released been released, as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after the Collateral Agent’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), and so long as the Collateral Agent maintains or has received any information reasonably requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (, otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) and (iii) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer and the Administrative Agent a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Administrative Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent (who shall promptly, but in no event later than the following second Business Day, deliver notice thereof to the Administrative Agent).
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1the
1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp III)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Investment Manager and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Investment Manager pursuant to Section 7.7 or from the Lender Agents and/or the Administrative Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Investment Manager or the Administrative Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Administrative Agent or the Collateral Investment Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Administrative Agent, the Borrower and the Collateral Investment Manager on each Reporting Date, (A) the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Investment Manager, the Borrower or the Administrative Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Investment Manager, the Agent, any Lender Administrative Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Investment Manager, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Investment Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Investment Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Investment Manager in a mutually agreed format;; and
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Investment Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Investment Manager, compare the results thereof and report the results to the Collateral Investment Manager in a mutually agreed format; and.
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Administrative Agent and the Collateral Investment Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Investment Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Investment Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Investment Manager, prior to the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default or the Administrative Agent, after the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Administrative Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Administrative Agent) that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Investment Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1their
1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Administrative Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Administrative Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Administrative Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Administrative Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Administrative Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Administrative Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Administrative Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Defaulta Facility Termination Event, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp II)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent (via the Collateral Agent’s website) certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;[Reserved]
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format[Reserved]; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Collateral Administration. (a) The Collateral Agent Administrator shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Administrative Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.312.03, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent8.07.
(ab) In connection therewith, the Collateral Agent Administrator shall:
(i) within 15 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Administrative Agent for the benefit of the Secured USActive 57710049.13-120- Parties from time to time, comprised of the Collateral Obligations Assets credited to the Accounts from time to time and Permitted Investments Cash Equivalents 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent Administrator by the Borrower, the Collateral Manager Administrative Agent or the Agent Servicer as may be reasonably required by the Collateral Agent Administrator from time to time or based upon notices received by the Collateral Agent Administrator from the issuer, or trustee or agent bank under an underlying instrumentUnderlying Instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Administrative Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent Administrator shall provide any such report to the Administrative Agent or the Collateral Manager upon its request therefor;
(iv) in connection with any Monthly Report for each month in which a Payment Date occurs, distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)2.13;
(v) prepare and deliver to the Administrative Agent, each Lender AgentLender, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 12.04 when requested by the Collateral ManagerServicer, the Borrower Borrower, the Administrative Agent or the Agentany Lender, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Administrative Agent pursuant to Section 3.4 2.08 and such other information as may be provided to the Collateral Agent Administrator by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender;
(vi) provide such other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent Administrator in performing its ordinary Collateral Agent Administrator function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Administrative Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day, no later than the Business Day and within three hours after following the Collateral Agent’s Administrator receipt of such request (provided such request is received by 12:00 Noon (New York time) p.m. on such date (otherwise such request will be deemed made on the next succeeding Business Day)), the Collateral Agent Administrator shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations Assets to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e4.02(f) and (g), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral AgentAdministrator’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.102.15) Collateral ObligationsAssets, the Collateral Agent Administrator shall perform, within three hours after no later than the Business Day following the Collateral AgentAdministrator’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) p.m. on such date (otherwise such request will be deemed made on the next succeeding Business Day)) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B2.15(a)(i)(A) and (C) in each case based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; andand USActive 57710049.13-121-
(ix) track the Adjusted Principal Balance and the Principal Balance of each Collateral Obligation Asset and report such balances to the Administrative Agent and the Collateral Manager upon requestServicer no later than 12:00 p.m. on each Business Day as of the close of business on the preceding Business Day.
(bc) The Collateral Agent Administrator shall provide to the Collateral Manager Servicer (if requested by the Servicer) a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Assets and the other Collateral held hereunder which it receives from the related Obligorobligor, participating bank and/or agent bank. In no instance shall the Collateral Agent Administrator be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from (absent the Collateral Manager, prior to the occurrence existence of an Event of Default or a Collateral Manager Event of Default Servicer Termination Event) the Servicer or (during the Agent, after the occurrence continuation of an Event of Default or a Collateral Manager Event of DefaultServicer Termination Event) the Administrative Agent, in which event the Collateral Agent Administrator shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the each Agent and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or and from the Lender Agents and/or and the AgentFacility Agent pursuant to Sections 3.4 and 8.5.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager and any Agent upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a)[reserved];
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower Borrower, any Agent or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any LenderAgent;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender Agent may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after on such Business Day as the Collateral Agent’s receipt of such request (provided (i) if such request is received by 12:00 Noon prior to 11:00 a.m. (New York time) on a Business Day, such request shall be deemed to have been received at 11:00 a.m. (New York time) on such date Business Day and (otherwise ii) if such request is received after 5:00 p.m. (New York time) on a Business Day such request will be deemed made on the next succeeding Business Day)) and so long as the Collateral Agent maintains or has received any information reasonably requested by it or necessary to make the calculations requested, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided (i) if such request is received by no later than 12:00 Noon prior to 11:00 a.m. (New York time) on a Business Day, such request shall be deemed to have been received at 11:00 a.m. (New York time) on such date Business Day and (otherwise ii) if such request is received after 5:00 p.m. (New York time) on a Business Day such request will be deemed made on the next succeeding Business Day) ), and so long as the Collateral Agent maintains or has received any information reasonably requested by it or necessary to make the calculations requested, a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (Ba)(i)(B) and (Ca)(i)(C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove; provided, however, that the Collateral Agent shall have no duty or obligation to prepare or file any such financing or continuation statement and such obligation shall remain with the relevant Borrower. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer (as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided such request is received by 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day)), and the Collateral Agent maintains or has received any information reasonably needed and requested by it, the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.10) Collateral ObligationsObligations and the written request of the Servicer on such Business Day, the Collateral Agent shall perform, within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon p.m. (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) )), and the Collateral Agent maintains or has received any information reasonably needed and requested by it, the Collateral Agent shall perform the following functions: a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or and (y) in any event, it shall only be required to do so prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including including, for the avoidance of doubt, an Event of DefaultDefault or any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements agreements, notices or documents, each in the form delivered to the Collateral Agent. For the avoidance of doubt, all All of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity. The Facility Agent hereby agrees that it will (i) not direct the Collateral Agent to deliver a Notice of Exclusive Control (as defined in the Account Control Agreement) except after the occurrence and during the continuation of an Event of Default and (ii) direct the Collateral Agent to promptly rescind any delivered Notice of Exclusive Control (as defined in the Account Control Agreement) following the waiver or rescission of an Event of Default in connection with any waiver or rescission of such Event of Default.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (BC Partners Lending Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Investment Manager, the Facility Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Investment Manager pursuant to Section 7.7 or from the Lender Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Investment Manager or the Facility Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Investment Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower Borrower, each Agent and the Collateral Investment Manager on each Reporting Date, (A) the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Investment Manager, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Investment Manager, the Facility Agent, any Lender Any Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Investment Manager, the Facility Agent, any Lender Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Investment Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Investment Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Investment Manager in a mutually agreed format;; and
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Investment Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding -95- Business Day)) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), 7.10(i)(A) and (B) and (Ciii) based upon information contained in the Collateral Database and information furnished by the Collateral Investment Manager, compare the results thereof and report the results to the Collateral Investment Manager in a mutually agreed format; and.
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Investment Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Investment Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Investment Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Investment Manager, prior to the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default or the Facility Agent, after the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of DefaultEvent, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Investment Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement Article XIII that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it and (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Defaulta Facility Termination Event, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (BlackRock TCP Capital Corp.)
Collateral Administration. The (a) All Collateral (except (x) Deposit Accounts and/or any Loan Clearing Account and (y) Collateral in the possession of Custodian) will at all times be kept by Borrower at the locations set forth on Schedule 5.18A hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Borrower hereby agrees to deliver, or cause to be delivered, to Custodian, the Custodian Deliverables with respect to each Pledged Loan (other than as it relates to an Approved Syndicated Loan or Broadly Syndicated Loan) within five (5) Business Days after the related Borrowing Date. All Pledged Loans shall, regardless of their location, be deemed to be under Agent’s dominion and control (with files so labeled) and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Agent or any designee of Agent or Borrower, to verify the validity, amount or any other matter relating to the Collateral, including inventory appraisals. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process or inventory appraisals. In addition to and notwithstanding any provision of any Loan Document, Agent shall maintain a database have the right at all times after the occurrence and during the continuance of certain characteristics an Event of the Collateral on an ongoing basisDefault to notify any Person owing amounts pursuant to Pledged Loans that their Pledged Loan has been assigned to Agent and to collect such amounts directly in its own name and to charge collection costs and expenses, and provide including reasonable attorneys’ fees, to the Borrower, provided, however, that Borrower shall endeavor in the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant first instance to Section 7.7 or from the Lender Agents and/or the make collection of such amounts for Agent.
(ab) In connection therewithAs and when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower are organized and/or maintain their executive offices, a place of business or assets; and (ii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(c) Within five (5) Business Days after the applicable Borrowing Date, Borrower shall deliver, or cause to be delivered, to Agent or Custodian any Attached Equity Interests and all items of Collateral that Agent must receive possession of to obtain a first-priority perfected Lien in such Collateral to the extent not already in the possession of Agent or Custodian.
(d) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent shallon such periodic basis as Agent may request in its sole discretion. If requested by Agent upon or at any time after the occurrence and during the continuation of an Event of Default, Borrower shall execute and deliver to Agent, formal written assignments of all of its Pledged Loans as Agent may request, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Pledged Loans exceed the amount of the outstanding Obligations, upon confirmation by Agent of such excess amount and so long as no Default or Event of Default has occurred and is continuing, such excess amount shall be refunded to Borrower upon written request in accordance with the terms of this Agreement.
(e) Borrower hereby agrees to take the following protective actions to prevent destruction of records pertaining to Borrower’s Collateral:
(i) within 15 if Borrower maintains its Collateral records on a manual system, such records shall be kept in a fire proof room or on no less than thirty (30) calendar days after following the Effective Dateend of each calendar month, create a Collateral database with respect record of all payments on Pledged Loans and all other matters relating to the Collateral that has been pledged shall be placed in an off-site safety deposit box (and Agent shall have access to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted Investments in which amounts held in the Accounts may be invested from time to time, as provided in this Agreement (the “Collateral Database”such safety deposit box);
; or (ii) update if the Collateral Database on a periodic basis for changes records are computerized, Borrower agrees to create an electronic “back-up” of the computerized information and to reflect the sale or other disposition provide Agent monthly with an electronic copy of assets included in the Collateral and any additional Collateral granted such “back-up” information (A) prior to the Collateral Agent from time Closing Date and (B) no later than thirty (30) days following the end of each calendar month following the Closing Date.
(f) Promptly upon learning of the anticipated payment in full of any Pledged Loan, Borrower shall give written notice thereof to time, Agent. Within two (2) Business Days after the actual payment in each case based upon, full of any Pledged Loan and delivery of the proceeds thereof to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Blockedapplicable Loan Clearing Account or the Agent Blocked Account (as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iiiapplicable) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);2.4 hereof, Borrower shall give written notice thereof to Agent and Custodian of such payment.
(vg) prepare and deliver Notwithstanding anything set forth herein to the Agentcontrary, each Lender Agentso long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) then upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’s receipt of (i)(A) a written request for the release of Agent’s Lien on any Pledged Loan, (iiB) unless otherwise agreed to in writing by Agent in its sole discretion, evidence acceptable to Agent that such request Pledged Loan is being sold to a third-party, non-Affiliate of Borrower on an arms-length basis for which purchase no Affiliate of Borrower is providing seller financing in connection with such sale and (provided such request is received by 12:00 Noon iiiC) receipt of payment (New York timeor payment into escrow pursuant to a mechanism acceptable to Agent) on such date of an amount equal to (otherwise such request will be deemed made on the next succeeding Business Day), the Collateral Agent shall perform the following functions: as Ax) 100% of the date the Collateral Manager commits on behalf net proceeds of the Borrower sale of such Pledged Loan plus (By) the amount required (if any) to purchase Collateral Obligations cause borrower to be included in compliance with Section 2.6 hereof following the Collateralrelease of such Pledged Loan, perform a pro forma calculation of the tests Agent shall, promptly, at Borrower’s cost and expense, deliver to Borrower (iI) any Collateral relating to such Pledged Loan and (iiII) Borrower-prepared release, satisfaction, discharge and/or termination agreements or similar instruments or filings in relation to such related Collateral and any other requirements set forth UCC or similar filings made by Agent in Section 6.2(e)relation thereto, in each case, based upon information contained in the Collateral Database form and report the results thereof substance reasonably satisfactory to the Collateral Manager in Agent; and/or (ii)(A) written notice from Borrower that any Loan Clearing Account that was previously a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) “Borrower Loan Clearing Account” has become a pro forma calculation of the tests “Syndicated Loan Clearing Account” and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results an updated schedule to the Collateral Manager in a mutually agreed format; and
(ix) track Borrower Loan Clearing Account Agreement reflecting the Principal Balance removal of each Collateral Obligation such Loan Clearing Account from the Borrower Loan Clearing Account Agreement, Agent shall, promptly, at Borrower’s cost and report expense, deliver to Borrower an acknowledged copy of such balances updated schedule to the Borrower Loan Clearing Account Agreement. Upon the request of Borrower, Agent agrees to provide a payoff letter, in form and substance acceptable to Agent, for the Collateral Manager upon request.
(b) The Collateral Agent shall provide release of Agent’s Lien on any such Pledged Loan, subject to the Collateral Manager a copy terms and conditions of this Section 2.11clause (g). Borrower shall bear the responsibility of recording any such documents delivered pursuant to this clause (g) and shall bear all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
out-of-pocket expenses (c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral legal fees and disbursements of Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(iLender) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunderpayoff letter, the Collateral Agent shall not be required to take any such incidental action hereundersupplemental schedule, but shall be required to act or to refrain from acting (release, reassignment and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent delivery delivered pursuant to this clause (xg)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Investment Manager, the Facility Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Investment Manager pursuant to Section 7.7 or from the Lender Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Investment Manager or the Facility Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Investment Manager and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Investment Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Investment Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Investment Manager, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Investment Manager, the Facility Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Investment Manager, the Facility Agent, any Lender Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Investment Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Investment Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Investment Manager in a mutually agreed format;
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Investment Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Investment Manager, compare the results thereof and report the results to the Collateral Investment Manager in a mutually agreed format; and
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Investment Manager upon request.
(b) The Collateral Agent shall provide to the Collateral Investment Manager a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Investment Manager in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Investment Manager, prior to the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of Default or the Facility Agent, after the occurrence of a Facility Termination Event or an Event of Default or a Collateral Investment Manager Event of USActive 31637433.35 -108- Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Investment Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Defaulta Facility Termination Event, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAll Collateral (except Deposit Accounts) will at all times be kept by the Obligors at the locations set forth on Schedule 5.18B hereto and shall not, the Collateral Agent shall:
(i) within 15 without forty calendar days after the Effective Dateprior written notice to Debenture Holder, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based uponmoved therefrom, and to in any case shall not be moved outside the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestcontinental United States.
(b) Each Obligor shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Debenture Holder on such periodic bases as Debenture Holder may request.
(c) Whether or not an Event of Default has occurred, any of Debenture Holder’s officers, employees, representatives or agents shall have the right, at any time during normal business hours, in the name of Debenture Holder, any designee of Debenture Holder or either Obligor, to verify the validity, amount or any other matter relating to any Accounts of either Obligor. The Collateral Agent Obligors shall provide cooperate fully with Debenture Holder in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, subject to the Collateral Manager a copy terms of all written notices and communications identified as being sent to it in connection with the Collateral Obligations Master Subordination Agreement and the other Collateral held hereunder which it receives from Junior Subordination Agreement, the related Obligor, participating bank and/or agent bankObligors shall endeavor in the first instance to make collection of its Accounts for Debenture Holder. In no instance shall Subject to the Collateral Agent be under any duty or obligation to take any action on behalf terms of the Collateral Manager in respect of Master Subordination Agreement and the exercise of any voting or consent rightsJunior Subordination Agreement, or similar actions, unless it receives specific written instructions from Debenture Holder shall have the Collateral Manager, prior to right at all times after the occurrence and during the continuance of an Event of Default or a Collateral Manager Event of Default or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent notify Account Debtors owing Accounts to take such action as agent on its behalf either Obligor that their Accounts have been assigned to Debenture Holder and to exercise collect such powers under this Agreement Accounts directly in its own name and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof charge collection costs and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Agent) that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateralexpenses, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Partyreasonable attorney’s fees, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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 adviceObligors.
(e) Concurrently herewithAs and when determined by Debenture Holder in its sole discretion, Debenture Holder will perform the Agent directs searches described in clauses (i) and (ii) below against the Collateral Agent Obligors (the results of which are to be consistent with the Obligors’ representations and warranties under this Agreement), all at the Obligors’ expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of the Obligors and the Collateral Agent is Secretary of State and local filing offices of each jurisdiction where the Obligors maintain their respective executive offices, a place of business or assets; (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office;and (iii) judgment, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Upon notice from Debenture Holder that the Master Subordination Agreement and the Junior Subordination Agreement have been terminated, each Obligor (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Debenture Holder has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to the appropriate Lockbox Account, and each Obligor hereby authorized authorizes Debenture Holder, upon any failure to enter into send such notices and directions within fifteen calendar days after the date of this Agreement (or fifteen calendar days after the Person becomes an Account Control Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Debenture Holder to create and perfect Debenture Holder’s lien on any collateral and effectuate the intentions of the Debenture Documents. Upon notice from Debenture Holder that the Master Subordination Agreement and the Junior Subordination Agreement have been terminated, each Obligor shall immediately deliver to Debenture Holder all items for which Debenture Holder must receive possession to obtain a perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other related agreements in similar instruments constituting Collateral (collectively, “Control Collateral”). Until such time as the form delivered to the Collateral Agent. For the avoidance of doubtMaster Subordination Agreement has terminated, all Control Collateral shall be held by CapitalSource for the benefit of Seller and Debenture Holder for the purpose of perfecting Seller’s and Debenture Holder’s security interest therein. Concurrently with the termination of the Master Subordination Agreement, CapitalSource shall deliver all Control Collateral Agent’s rights, protections and immunities provided herein shall apply to Seller. After the Collateral Agent for any actions taken or omitted to be taken under termination of the Account Control Master Subordination Agreement and any other related agreements in until such capacitytime as the Junior Subordination Agreement has terminated, all Control Collateral shall be held by Seller for the benefit of Debenture Holder for the purpose of perfecting Debenture Holder’s security interest therein. Concurrently with the termination of the Junior Subordination Agreement, Seller shall deliver all Control Collateral to Debenture Holder.
Appears in 1 contract
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral ManagerServicer, the Facility Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 7.8 or from the Lender Agents and/or the Facility Agent.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Servicer or the Facility Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager Servicer upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Facility Agent, each Lender Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent USActive 57084911.14 -106- pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Facility Agent, any Lender Agent or any Lender;
(viv) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Facility Agent, any Lender Agent or any Lender may reasonably request from time to time;
(viivi) upon the written request of the Collateral Manager Servicer on any Business Day and within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by 12:00 Noon after 5:00 p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day), the Collateral Agent shall perform the following functions: as of the date the Collateral Manager Servicer commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section Sections 6.2(e) and (f), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager Servicer in a mutually agreed format;
(viiivii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager Servicer of its intent to sell (in accordance with Section 7.107.11) Collateral Obligations, the Collateral Agent shall perform, within three hours after no later than the Business Day following the Collateral Agent’s receipt of such request (provided if, however, any such request is received by no later than 12:00 Noon after 5:00 p.m. (New York time) on such date (otherwise such request will be deemed made to have been received on the next succeeding Business Day) ), a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A7.11(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral ManagerServicer, compare the results thereof and report the results to the Collateral Manager Servicer in a mutually agreed format; and
(ixviii) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager Servicer upon request.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications received by it and identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an a Facility Termination Event of Default or a Collateral Manager Servicer Event of Default or the Facility Agent, after the occurrence of an a Facility Termination Event of Default or a Collateral Manager Servicer Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) USActive 57084911.14 -107- that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of after its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an a Facility Termination Event of Defaultor any notice, document, certificate or other information required to be forwarded by the Facility Agent to the Collateral Agent, unless a Responsible Officer of the Collateral Agent has knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request USActive 57084911.14 -108- written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity. The Facility Agent hereby agrees that it will (i) not direct the Collateral Agent to deliver a Notice of Exclusive Control (as defined in the Account Control Agreement) except after the occurrence and during the continuation of a Facility Termination Event and (ii) direct the Collateral Agent to promptly rescind any delivered Notice of Exclusive Control (as defined in the Account Control Agreement) following the waiver or rescission of a Facility Termination Event in connection with any waiver or rescission of such Facility Termination Event.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent and the Lender Agents certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager pursuant to Section 7.7 or from the Lender Agents and/or the Agent.
(a) In connection therewithAs and when determined by the Administrative Agent or the Requisite Lenders in its or their reasonable discretion, upon the occurrence and during the continuation of a Default or an Event of Default, the Collateral Administrative Agent shall:
(i) within 15 days after or the Effective DateRequisite Lenders may, create a Collateral database with respect to at the Collateral that has been pledged to Borrower’s expense, perform UCC, judgment, litigation, tax Lien and other similar searches, in any jurisdictions determined by Administrative Agent or the Collateral Agent for the benefit of the Secured Parties Requisite Lenders from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and against any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager or the Agent as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager and Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);
(v) prepare and deliver to the Agent, each Lender Agent, the Borrower and the Collateral Manager on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral Manager, the Borrower or the Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral Manager, the Agent, any Lender Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format;
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Agent and the Collateral Manager upon requestLoan Party.
(b) The Collateral Agent Borrower, and Manager, as applicable, shall provide to the Collateral Manager a copy of all written notices keep accurate and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf complete records of the Collateral Manager in respect of Customer Contracts and all payments and Collections thereon and shall submit such records to Administrative Agent on such periodic basis (and at least quarterly) as the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral Manager, prior to the occurrence of an Event of Default or a Collateral Manager Event of Default Administrative Agent or the Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent Requisite Lenders may reasonably request. If requested by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Administrative Agent (acting at the direction of the Agent) Requisite Lenders), the Borrower, and each other Loan Party, as its agent to applicable, shall execute and deliver all further instruments to the Administrative Agent, formal written assignments or allonges, in form and documents, and take all further action substance reasonably acceptable to the Administrative Agent (acting at the written direction of the Agent) that the Agent deems necessary Requisite Lenders), of any or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments or notices, Customer Contracts as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Administrative Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be acting at the written direction of the AgentRequisite Lenders) may reasonably request, and the Collateral Agent shall have no responsibility or liability in connection together with determining any actions necessary or desirable to perfectcopies of claims, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunderinvoices and/or other information related thereto.
(iic) The Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunderBorrower shall, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the Administrative Agent’s written direction request upon the occurrence and during the continuation of the Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless (i) provide prompt written notice to each Customer that the Administrative Agent has been granted a Responsible Officer of Lien on and security interest in, upon and to all Customer Contracts payable by such Customer and (ii) shall do Uniti – Bridge Loan and Security Agreement #97751373v29 anything further that may be lawfully required under Applicable Law and requested in writing by the Administrative Agent or the Requisite Lenders in their reasonable discretion to secure the Administrative Agent’s interest in the Collateral Agent has knowledge and effectuate the intentions of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent 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) Concurrently herewith, the Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Bridge Loan and Security Agreement (Uniti Group Inc.)
Collateral Administration. The Collateral Agent shall maintain a database of certain characteristics of the Collateral on an ongoing basis, and provide to the Borrower, the Collateral Manager, the Agent Servicer and the Lender Agents Facility Agent (via the Collateral Agent’s website) certain reports, schedules and calculations, all as more particularly described in this Section 11.3, based upon information and data received from the Borrower and/or the Collateral Manager Servicer pursuant to Section 7.7 or from the Lender Agents and/or the Agent7.7.
(a) In connection therewith, the Collateral Agent shall:
(i) within 15 days after the Effective Closing Date, create a Collateral database with respect to the Collateral that has been pledged to the Collateral Agent for the benefit of the Secured Parties from time to time, comprised of the Collateral Obligations credited to the Accounts from time to time and Permitted 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 on a periodic basis for changes and to reflect the sale or other disposition of assets included in the Collateral and any additional Collateral granted to the Collateral Agent from time to time, in each case based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower, the Collateral Manager Borrower or the Agent Servicer as may be reasonably required by the Collateral Agent from time to time or based upon notices received by the Collateral Agent from the issuer, or trustee or agent bank under an underlying instrument, or similar source);
(iii) track the receipt and allocation to the Collection Account of Principal Collections and Interest Collections and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager Servicer and Facility Agent daily reports reflecting such actions to the accounts as of the close of business on the preceding Business Day and the Collateral Agent shall provide any such report to the Facility Agent or the Collateral Manager upon its request therefor;
(iv) distribute funds in accordance with such Monthly Report in accordance with Section 8.3(a);; DOCPROPERTY DocID \* MERGEFORMAT USActive 61774393.5 -100-
(v) prepare and deliver to the Agent, each Lender Facility Agent, the Borrower and the Collateral Manager Servicer on each Reporting Date, the Monthly Report and any update pursuant to Section 8.5 when requested by the Collateral ManagerServicer, the Borrower or the Facility Agent, on the basis of the information contained in the Collateral Database as of the applicable Determination Date, the information provided by each Lender Agent and the Facility Agent pursuant to Section 3.4 and such other information as may be provided to the Collateral Agent by the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender;
(vi) provide other such information with respect to the Collateral granted to the Collateral Agent and not released as may be routinely maintained by the Collateral Agent in performing its ordinary Collateral Agent function pursuant hereunder, as the Borrower, the Collateral ManagerServicer, the Agent, any Lender Facility Agent or any Lender may reasonably request from time to time;
(vii) upon the written request of the Collateral Manager on any Business Day and within three hours after the Collateral Agent’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 Agent shall perform the following functions: as of the date the Collateral Manager commits on behalf of the Borrower to purchase Collateral Obligations to be included in the Collateral, perform a pro forma calculation of the tests and other requirements set forth in Section 6.2(e), in each case, based upon information contained in the Collateral Database and report the results thereof to the Collateral Manager in a mutually agreed format[reserved];
(viii) upon the Collateral Agent’s receipt on any Business Day of written notification from the Collateral Manager of its intent to sell (in accordance with Section 7.10) Collateral Obligations, the Collateral Agent shall perform, within three hours after the Collateral Agent’s receipt of such request (provided such request is received by no later than 12:00 Noon (New York time) on such date (otherwise such request will be deemed made on the next succeeding Business Day) a pro forma calculation of the tests and other requirements set forth in Sections 7.10(a)(i)(A), (B) and (C) based upon information contained in the Collateral Database and information furnished by the Collateral Manager, compare the results thereof and report the results to the Collateral Manager in a mutually agreed format[reserved]; and
(ix) track the Principal Balance of each Collateral Obligation and report such balances to the Facility Agent and the Collateral Manager upon requestServicer no later than 12:00 Noon (New York City time) on each Business Day as of the close of business on the preceding Business Day.
(b) The Collateral Agent shall provide to the Collateral Manager Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Obligations and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Agent be under any duty or obligation to take any action on behalf of the Collateral Manager Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Collateral ManagerServicer, prior to the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default or the Facility Agent, after the occurrence of an Event of Default or a Collateral Manager Event of Servicer Default, in which event the Collateral Agent shall only vote, consent or take such other action in accordance with such instructions.
(c) In addition to the above:
(i) The Facility Agent and each Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Facility Agent) as its agent to execute and deliver all further instruments and documents, and take all further action (at the written direction of the Facility Agent) that the Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution or filing by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Collateral Obligations now existing or hereafter arising, and such other instruments DOCPROPERTY DocID \* MERGEFORMAT USActive 61774393.5 -101- or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this Section 11.3(c)(i) shall be deemed to relieve the Borrower or the Collateral Manager Servicer of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral in accordance with Section 10.1. It is understood and agreed that any and all actions performed by the Collateral Agent in connection with this Section 11.3(c)(i) shall be at the written direction of the Facility Agent, and the Collateral Agent shall have no responsibility or liability in connection with determining any actions necessary or desirable to perfect, protect or more fully secure the security interest granted by the Borrower hereunder or to enable any Person to exercise or enforce any of their respective rights hereunder.
(ii) The Facility Agent may direct the Collateral Agent in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Facility Agent; provided that the Collateral Agent shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the determination of the Collateral Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Agent requests the consent of the Facility Agent and the Collateral Agent does not receive a consent (either positive or negative) from the Facility Agent within 10 Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(iii) Except as expressly provided herein, the Collateral Agent shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it (x) unless and until (and to the extent) expressly so directed by the Facility Agent or (y) prior to the Facility Termination Date (and upon such occurrence, the Collateral Agent shall act in accordance with the written instructions of the Facility Agent pursuant to clause (x)). The Collateral Agent shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent, or the Facility Agent. The Collateral Agent shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent has actual knowledge of such matter or written notice thereof is received by the Collateral Agent.
(d) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Facility Agent as to the course of action desired by it. If the Collateral Agent does not receive such instructions within two Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, DOCPROPERTY DocID \* MERGEFORMAT USActive 61774393.5 -102- taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(e) Concurrently herewith, the Facility Agent directs the Collateral Agent and the Collateral Agent is hereby authorized to enter into the Account Control Agreement and any other related agreements in the form delivered to the Collateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Account Control Agreement and any other related agreements in such capacity.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)