Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations: (i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent. (ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian. (iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files. (iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control. (v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files. (vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower. (vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action. (viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 7 contracts
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Senior Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall performand the Backup Servicer) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, on behalf the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent, the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iix) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)any Required Loan Documents, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a fireproof safe or fireproof file cabinet;
(specified on an accompanying Schedule of Collateral Obligations supplementx) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04;
(xi) directing the sale or substitution of Collateral Obligation File Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xiv) delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, and Updated Assigned Value in accordance with the terms hereof. Promptly upon hereof (including paying the receipt compensation of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.Nationally Recognized Valuation Firms); and
(iixvi) With respect to each Collateral Obligation File which has been or will complying with such other duties and responsibilities as may be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian required of the Secured Parties, Servicer by this Agreement. It is acknowledged and has no instructions to hold any Collateral Obligation File for the benefit of any agreed that in circumstances in which a Person other than the Secured Parties Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and undertakes to perform agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such duties and only such duties as are specifically set forth performance would conflict with or result in this Agreement. In so taking and retaining custody a breach of any of the Collateral Obligation Filesexpress terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance (b) have determined that there is no other commercially reasonable performance that it could render consistent with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession express terms of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody Loan Agreements which would result in all or a portion of all Collateral Obligation Files in its possession in secure facilities the servicing duties being performed in accordance with customary standards for this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such custody and shall reflect in its records the interest non-performance including performing as much of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at servicing duties as possible and performing such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents commercially reasonable or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance similar duties consistent with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlLoan Agreements.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 5 contracts
Sources: Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.), Loan and Servicing Agreement (Solar Senior Capital Ltd.), Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Custodian Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Agent shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and without any whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian Agent is unable to confirm the Review Criteria, the Collateral Agent shall send notice within one (1) Business Day notify the Collateral Manager and the Borrower of such receipt determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and each Lender such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesUnderlying Instruments, the Collateral Custodian Agent shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties as agent shall be released from the possession of the Collateral Custodianlimited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Loan Documents that are originals shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records fire resistant vaults, rooms or cabinets at the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession offices of the Collateral Agent (other than documents delivered electronically) set forth in Section 5.5(c). All Required Loan Documents shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian Agent shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesAgent.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian Agent shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, the Agent’s written instructions such Loan shall controlcease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the case Administrative Agent deems necessary or desirable in order to exercise or enforce any of the Borrower rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Collateral Manager, or a Responsible Officer, in Borrower which conflict with any instructions received by the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation FilesAgent shall rely on and follow the instructions given by the Administrative Agent.
(vi) In The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the event that (i) Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, any Agent, the Borrower and Collateral Manager, the Collateral Custodian or Manager within one (1) Business Day of receipt by the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within Management Report and the parties shall reconcile such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowerdiscrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Custodian in writing Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian Agent hereunder, the Collateral Custodian Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that .
(xvi) Nothing herein shall prevent the Collateral Custodian shall not be required Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to take any action hereunder at Person.
(xvii) Concurrently herewith, the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of Administrative Agent directs the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from Agent is authorized to enter into the Agent within ten (10) Business Days Sale Agreement and the Securities Account Control Agreement. For the avoidance of its receipt of such requestdoubt, then all the Agent Collateral Agent’s rights, protections and immunities provided herein shall be deemed to have declined to consent apply to the relevant action.
(viii) The Collateral Custodian shall not be liable Agent for any action taken, suffered actions taken or omitted by it to be taken under the Sale Agreement and the Securities Account Control Agreement in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencecapacity.
Appears in 5 contracts
Sources: Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.)
Duties. The Collateral Custodian Manager shall performtake or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on behalf the Collateral from time to time, all in accordance with Applicable Law and the Collateral Manager Standard. Subject to the terms of this Agreement (including Section 11.04 and Article VI), the Collateral Manager has the sole and exclusive authority to make any and all decisions with respect to the Collateral and take or refrain from taking any and all actions with respect to the Collateral. Without limiting the foregoing, the duties of the Secured Parties, Collateral Manager shall include the following duties and obligationsfollowing:
(i) The supervising the Collateral, including communicating with Obligors, executing amendments, providing consents and waivers, exercising voting rights, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent and the Custodian, ) in respect of the servicing of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the duly appointed agent Administrative Agent or any Lender may reasonably request and which can be obtained without any undue burden or expense pursuant to the Related Documents;
(iii) maintaining and implementing administrative and operating procedures (including an ability to recreate servicing records evidencing the Collateral in the event of the Secured Partiesdestruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior collection of the Collateral;
(iv) promptly delivering to the applicable Funding Date (but no more than three (3) Business Days after such Funding DateAdministrative Agent, except as set forth in Section 10.20)each Lender, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on Agent or the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval RequestCustodian, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, such information and that servicing records (including information relating to its performance under this Agreement) as the Collateral Administrative Agent, each Lender, the Custodian will provide or the Collateral Agent may from time to time reasonably request and which can be obtained without any undue burden or expense pursuant to the Related Documents;
(v) identifying each Collateral Loan in its internal servicing records to reflect the ownership of such Collateral Loan by the Borrower;
(vi) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be asserted by an Obligor with all information necessary for respect to any Collateral Loan (or portion thereof) of which it has actual knowledge or has received notice;
(vii) [reserved];
(viii) directing the Collateral Agent to credit make payments pursuant to the terms of the Payment Date Report;
(ix) assisting the Borrower with respect to the purchase and sale of and payment for the Collateral Loans and Eligible Investments;
(x) instructing any agent or administrative agent for each Collateral Obligation File Loan to remit all payments and collections with respect to such Collateral Loan (and, if an Obligor may make payments directly to the lenders under the Related Documents, to direct the Obligor with respect to such Collateral Loan to remit all such payments and collections with respect to such Collateral Loan) directly into the Collection Account Account;
(xi) delivering assignments and promissory notes to the Custodian;
(xii) complying with such other duties and responsibilities as may be required of the Collateral Manager by this Agreement; and
(xiii) assisting in the acquisition and sale of Collateral Loans and other Collateral in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent Article X and the Collateral Manager in a written notice at least thirty (30) days prior Standard; provided that, notwithstanding anything herein to such change. Each the contrary, neither the Collateral Obligation File Manager nor the Borrower shall be marked with an appropriate identifying label and maintained in such manner so as required to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from provide to any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions or Lender any documents or information that the disclosure of an Executive Officer, which would violate any confidentiality agreement or restriction. It is acknowledged and agreed that in the case of circumstances in which a Person other than the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order Manager acts as lead agent with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this AgreementLoan, the party receiving such service Collateral Manager shall promptly deliver or cause to be delivered to the other parties to this Agreement (perform its servicing duties hereunder only to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to a lender under the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it applicable Related Documents has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencedo so.
Appears in 4 contracts
Sources: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Asset Documents delivered by the Collateral Manager shall deliver, on or prior Seller pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and without any the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall send notice of such receipt to determine that (i) the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody Outstanding Asset Balances of the Collateral Obligation Filesit has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall be deemed to be acting for immediately notify the purpose Administrative Agent of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5such discrepancy, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
and (iiiii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation FileReview Criteria is not satisfied, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for within one Business Day notify the Secured Parties, (ii) hold all documents constituting Servicer of such Collateral Obligation File received by it for determination and provide the exclusive use and benefit Servicer with a list of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement non-complying Assets and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event applicable Review Criteria that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect they fail to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedingssatisfy. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian Servicer shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) have five Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for correct any action taken, suffered or omitted by it in accordance non-compliance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.Review
Appears in 4 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. The From the Closing Date until Restatement Date, the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Manager, Custodian shall notify the Agent and each Lender Agentthe Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Obligation File Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a document included within such Collateral Obligation File written request in the form of Exhibit N), as directed applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Agent in writingBorrower hereunder, which shall give a direction consistent or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with such determinationrespect to Article VII. Expenses of In the event the Collateral Custodian incurred as a result of such proceedings shall be borne receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the BorrowerAgent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(viiii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 4 contracts
Sources: Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Duties. The On or before the Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Required Receivable Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the The Collateral Custodian shall send notice of such receipt not have any responsibility for reviewing, inspecting or examining any Required Receivable File to determine that the Collateral Managercontents thereof are genuine, enforceable or appropriate for the Agent and each Lender Agentrepresented purpose or that they are other than what they purport to be on their face.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Required Receivable Files, the Collateral Custodian shall be deemed to be acting for as the purpose Bailee of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with enforceability of any Required Receivable File documents or the provisions existence, perfection or priority of Section 18.5, no Collateral Obligation File any Lien on the Required Receivable Files or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Receivable File documents that are originals or copies shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure fire resistant facilities in accordance with the Collateral Custodian’s customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets custody, at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation All Required Receivable File documents that are originals or copies shall be marked with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesaccess.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Servicing Report in accordance with Section 2.6 (the “Payment Duties”).
(v) On the third Business Day of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall control.
Borrower and the Servicer (v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in a form acceptable to the case of the Borrower or Administrative Agent and the Collateral Manager, or a Responsible Officer, Custodian) an updated list of Receivables in the case of the Agent, concerning the use, handling its possession and disposition of the Collateral Obligation Filesan updated exceptions report.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided similar collateral that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionholds as collateral custodian for others.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 4 contracts
Sources: Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.)
Duties. The From the Closing Date until its removal pursuant to Section 13.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 12.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar Senior Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 4 contracts
Sources: Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.), Loan and Servicing Agreement (Solar Senior Capital Ltd.), Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.02 in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Tape and a hard copy of the Loan Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such delivery Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (to the extent required by the Required Loan Documents) are included, (C) if listed on the Loan Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Obligation Files is included, and without any (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan number and Obligor name, as applicable, with respect to such Loan is referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan with respect to which it has received Required Loan Documents is less than as set forth on the Loan Tape, the Collateral Custodian shall notify the Administrative Agent and the Borrower and the Borrower Advisors of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Borrower and the Borrower Advisors of such determination and provide the Borrower and the Borrower Advisors with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Borrower and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in set forth on Annex A to this Agreement, or at such other offices office as shall be specified to the Administrative Agent and the Borrower by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to the Borrower and its Affiliates and Subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Borrower and the Agent, Borrower Advisors (in a form mutually agreeable to the Agent’s written instructions shall controlAdministrative Agent and the Collateral Custodian) identifying each Loan for which it holds Required Loan Documents and the applicable Review Criteria that any Loan fails to satisfy.
(vi) The Collateral Custodian shall accept only agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written instructions of an Executive Officer, request in the case form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower or the Collateral Managerhereunder, or a Responsible Officerto enable any of them to exercise or enforce any of their respective rights hereunder, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) including any rights arising with respect to Article VII. In the event that (i) the Borrower, Collateral Custodian receives instructions from the Collateral Agent, any Agent, the Collateral Manager, the Collateral Custodian Borrower Advisors or the Collateral Agent shall be served by a third party Borrower which conflict with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding instructions received by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtAdministrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(viiii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless an Authorized Person of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (FS Investment Corp II), Loan and Servicing Agreement (FS Energy & Power Fund), Loan and Servicing Agreement (FS Investment Corp II)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Administrative Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 4 contracts
Sources: Amendment No. 6 (HMS Income Fund, Inc.), Amendment No. 5 (HMS Income Fund, Inc.), Amendment No. 3 (HMS Income Fund, Inc.)
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents that constitute Escrowed Assignment Agreement Documents at one of its offices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and from time to time upon notice to the Borrower, the Services Provider, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) five Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Services Provider and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such receipt documents shall have been delivered by the Borrower to or otherwise made available to the Collateral Manager, the Agent and each Lender Administrative Agent).
(ii2) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Affiliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence Borrower or Services Provider hereunder or under any other Transaction Document.
(5) The Collateral Custodian shall have no obligation to review or verify whether the Borrower or the Services Provider on its behalf has obtained and delivered (or made available to the Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of an Event of DefaultCollateral Obligations hereunder, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless and the Collateral Custodian has received written notice from shall have no obligation to maintain the Agent, Collateral Manager or Transaction Data Room on behalf of the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, unless otherwise expressly agreed by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencewriting.
Appears in 3 contracts
Sources: Credit Agreement (Blue Owl Technology Finance Corp.), Credit Agreement and Margining Agreement (Blue Owl Technology Income Corp.), Credit Agreement (Owl Rock Technology Income Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 3 contracts
Sources: Loan Financing and Servicing Agreement (BC Partners Lending Corp), Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.22), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, Investment Manager and the Agent and each Lender Administrative Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 3 contracts
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III), Loan Financing and Servicing Agreement (FS Investment Corp II), Loan Financing and Servicing Agreement (TCP Capital Corp.)
Duties. The Collateral Until its removal pursuant to Section 13.9, the Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon With respect to each delivery of Required Loan Documents, the Borrower shall provide or cause to be provided a related Loan Checklist to the Custodian with respect to such Required Loan Documents that are being delivered.
(ii) Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Custodian shall review the Required Loan Documents delivered to it (as identified on the related Loan Checklist) to confirm that (A) the Obligor name matches the Obligor name identified on the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Custodian and (D) the related Outstanding Balance (based on a comparison to the note or assignment agreement, as applicable) matches the Outstanding Balance listed on the related Loan Checklist (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Custodian, in connection with each delivery of Required Loan Documents hereunder to the Custodian, the Collateral Obligation Files Manager shall provide to the Custodian an electronic copy (in EXCEL or a comparable format acceptable to the Custodian, as applicable) of the related Loan Checklist that contains a list of the Loans, all related Required Loan Documents and without any whether they require original signatures, the Loan identification number, the Outstanding Balance of such Loan and the name of the Obligor with respect to each related Loan identified on such schedule. Notwithstanding anything herein to the contrary, the Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. At the conclusion of such review, the Collateral Custodian shall send notice of such receipt to provide the Collateral Manager, the Administrative Agent and the Borrower (with a copy to the Collateral Agent) a report in the form attached hereto as Exhibit L identifying each Lender AgentLoan for which it holds Required Loan Documents and the variances to the Review Criteria (the “Custodian Report”), which shall include (i) any discrepancies related to the Outstanding Balance of the Loans with respect to which it has received Required Loan Documents and the Outstanding Balance provided in the electronic file of the Loan Checklist, and (ii) any Review Criteria that is not satisfied. The Collateral Manager shall have twenty (20) Business Days after delivery of a Custodian Report to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any noncompliance by a Loan with any Review Criteria, the Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit L by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Custodian’s delivery of such report, the Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Custodian shall not have any responsibility for reviewing any Underlying Instruments or Required Loan Documents.
(iiiii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Collateral AgentAdministrative Agent and the Lenders; provided that the Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided further that the Custodian’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties as agent shall be released from limited to those expressly contemplated herein and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the possession of part of, the Collateral Custodian.
(iiiiv) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents that are originals shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office offices of the Collateral Custodian specified set forth in Annex A Section 5.5(c), or at such other offices office as shall be specified to the Administrative Agent and the Collateral Manager by the Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Collateral Obligation Files clearly segregated from Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit files of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlCustodian.
(v) On each Reporting Date, the Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Custodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Custodian Manager shall accept only have twenty (20) Business Days after receiving written instructions of notice thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation FilesEligible Loan until such non-compliance is cured.
(vi) The Custodian agrees, subject to Section 13.2(a)(vii), to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order for the Administrative Agent to exercise or enforce any of the rights of a Secured Party hereunder. In the event that (i) the Borrower, Custodian receives instructions from the Agent, Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other reasonable actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, ; provided that the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Custodian may conclusively rely on and shall be fully protected in acting upon any certificate (including any Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, letter, facsimile, electronic communication or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral Manager.
(ix) The Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 3 contracts
Sources: Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Asset Documents delivered by the Collateral Manager shall deliver, on or prior Seller pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and without any the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such receipt discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Collateral ManagerSeller. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent and the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Asset Documents or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Asset Document shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 45 days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian All Required Asset Documents shall keep the Collateral Obligation Files be clearly segregated from any other documents or instruments in its filesmaintained by the Collateral Custodian.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the parties hereto acknowledging that the Turbo Period has commenced on the Turbo Effective Date) (the “Payment Duties”).
(v) On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in non-complying Assets and the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesapplicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the similar Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the it holds as Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 3 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at 4▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Originator and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall accept only written instructions of an Executive Officernot have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, in and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the case other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the Borrower or foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Manager, Custodian shall not be required to exercise any discretion hereunder and shall have no investment or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesmanagement responsibility.
(vi) In the event that (i) the BorrowerIf, the Agent, any Agent, the Collateral Managerin performing its duties under this Agreement, the Collateral Custodian or is required to decide between alternative courses of action, the Collateral Custodian may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Custodian may, but shall be served by a third party with under no duty to, take or refrain from taking any type such courses of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedingsaction. The Collateral Custodian shall, shall act in accordance with instructions received after such two (2) Business Day period except to the extent permitted by lawit has already, continue in good faith, taken or committed itself to hold take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and maintain all independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Obligation Files Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(viiii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.518.518.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp), Loan and Servicing Agreement (Blue Owl Capital Corp)
Duties. The From the Closing Date until its resignation or removal pursuant to Section 13.10, the Collateral Custodian shall perform, on behalf of the Secured Parties, perform the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior Required Loan Documents delivered by any Loan Party pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents and without any reviewthe related Loan Checklist, the Collateral Custodian shall send notice of review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such receipt Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral ManagerCustodian and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the loan balance listed on the related Loan Schedule (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Custodian as applicable) of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian is acting exclusively as unable to confirm the custodian Review Criteria, the Collateral Custodian shall within one (1) Business Day notify the Servicer and the applicable Loan Party of such determination and provide the Servicer and such Loan Party with a list of the Secured Partiesnon-complying Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Custodian shall promptly notify the Servicer, the applicable Loan Party and has no instructions the Administrative Agent of such continued non-compliance and such Loan shall cease to hold be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit D by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return the Required Loan Documents for any Collateral Obligation File for the benefit of Loan which fails to satisfy any Person other Review Criteria to such Loan Party. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In so taking and retaining custody of the Collateral Obligation FilesUnderlying Instruments, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Underlying Instruments or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents that are originals shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office offices of the Collateral Custodian specified in Annex A or at such other offices as Custodian. All Required Loan Documents shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesCustodian.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the AgentAdministrative Agent and the Collateral Custodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Servicer shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, the Agent’s written instructions such Loan shall controlcease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the case Administrative Agent deems necessary or desirable in order to exercise or enforce any of the Borrower or rights of a Secured Party hereunder. In the event the Collateral Manager, Custodian receives instructions from the Servicer or a Responsible Officer, in any Loan Party which conflict with any instructions received by the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation FilesCustodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) In On or promptly following the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtClosing Date, the Collateral Custodian shall dispose of such provide the Collateral Obligation File or a document included within such Collateral Obligation File as directed Agent, the Administrative Agent, the Borrower and the Servicer access to an electronic database maintained by the Agent in writingCollateral Custodian, which such database shall give a direction consistent with such determination. Expenses of identify the Required Loan Documents delivered to the Collateral Custodian incurred per the Loan Checklist.
(vii) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have or be deemed to have any fiduciary relationship with any party hereto or any Secured Party in its capacity as a result of such proceedings such, and no implied covenants, functions, obligations or responsibilities shall be borne read into this Agreement, the other Loan Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be deemed to assume any obligations or liabilities of the Borrower, the Administrative Agent or Collateral Agent hereunder or under any other Loan Document.
(viii) After the occurrence and during the continuance of an Event of Default, the Collateral Custodian agrees to cooperate with the Collateral Agent and promptly deliver any Required Loan Documents to the Collateral Agent (acting at the direction of the Required Lenders) as requested in order to take any action that the Lenders deem necessary or desirable in order for the Collateral Agent to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder. In the event the Collateral Custodian receives instructions from the Borrower which conflict with any instructions received from the Collateral Agent (acting at the direction of the Required Lenders) at any time other than following the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall rely on and follow the instructions given by the Collateral Agent. After the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall rely on and follow only the instructions given by the Collateral Agent and shall not follow any instructions given by the Borrower.
(viiix) The Collateral Agent or the Administrative Agent (each acting at the direction of the Required Lenders) may direct the Collateral Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Collateral Agent or Administrative Agent, as applicable; provided that the Collateral Custodian shall not be required to take any such action hereunder at the request direction of the Administrative Agent, any Secured Parties the Collateral Agent, or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received been provided with an indemnity agreement (including the indemnity provisions contained herein and in the other Transaction Documents) which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent or Collateral Agent, as applicable, and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent or the Collateral Agent, as applicable, within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent or the Collateral Agent, as applicable, shall be deemed to have declined to consent to the relevant action.
(viiix) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, Custodian or the Administrative Agent or Collateral Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless an authorized officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager a Lender or the Borrower referring to this Agreement, describing such event Event of Default, and stating that such notice is a “Notice of Event of Default,.” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Security Agreement (Blue Owl Credit Income Corp.), Loan and Security Agreement (Owl Rock Core Income Corp.)
Duties. The Collateral Document Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Document Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager purposes shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request, as applicable. The Collateral Document Custodian acknowledges that in connection with any Asset Approval Request or the related Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian it from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Document Custodian, the Collateral Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Document Custodian.
(iii) The Collateral Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each tangible Collateral Obligation File which comes into held by the possession of the Collateral Agent (other than documents delivered electronically) Document Custodian shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager kept in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File fire resistant value, room or cabinet and shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Document Custodian and the Agent. The Collateral Document Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Document Custodian shall (i) act exclusively as Collateral Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Document Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer (as listed on Exhibit F-1, as such exhibit may be amended from time to time by the Servicer with notice to the Document Custodian, the Agent and each Lender Agent), or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agentthe Servicer, the Collateral Manager, the Collateral Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Document Custodian hereunder, the Collateral Custodian such party shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Document Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, Document Custodian (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Document Custodian requests the consent of the Agent and the Collateral Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Document Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodiansuch party, or the Agent. The Collateral Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default Event of Default unless the Collateral Document Custodian has received written notice from the Agent, Collateral Manager Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Servicer Event of Default,” or “Notice of Collateral Manager Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Solar Capital Ltd.), Loan and Servicing Agreement (Solar Capital Ltd.)
Duties. The On or before the Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Required Receivable Files delivered by the Borrowers pursuant to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Section 3.1 in accordance with the terms hereofand conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Promptly upon the Within (i) two (2) Business Days of its receipt of any Required Receivable File with respect to Receivables being acquired from Sellers of Receivables included in the Collateral on a prior Funding Date and (ii) five (5) Business Days of its receipt of any Required Receivable File with respect to Receivables being acquired from Sellers of Receivables not previously included in the Collateral, the Collateral Custodian shall review such Required Receivable File to confirm that (A) the loan documents and instruments in such Required Receivable File have been properly executed and have no missing or mutilated pages, and (B) the related original principal balance of the Receivable (for closed end contracts only), contract or other identifying number and Obligor name with respect to such Receivable is referenced on the related Receivables List and is not a duplicate Receivable (based on the contract number or other identifying number) (such items (A) and (B) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with the delivery of Required Receivable Files hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in Excel® or a comparable format) that contains the contract number, Obligor name and without any original loan balance (if applicable). At the conclusion of such review, the Collateral Custodian shall send notice deliver to the Servicer, the Borrowers and the Administrative Agent a collateral receipt in the form of Exhibit K attached hereto (a “Collateral Receipt”). If any Collateral Receipt discloses any deficiencies (a “Deficiency”) in any of the Required Receivable Files, the Collateral Custodian shall promptly notify the Administrative Agent and the Servicer of such receipt Deficiency and provide them with an exception report specifying the Receivables which have a Deficiency and the Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by a Receivable with any Review Criteria, the Collateral Custodian shall promptly notify the Borrowers and the Administrative Agent of such determination by providing an updated exception report to such Persons identifying, with particularity, each Receivable and each of the applicable Review Criteria that such Receivable fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Receivable which fails to satisfy a Review Criteria to the Collateral ManagerBorrowers or their applicable designee. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing, inspecting or examining any Required Receivable File to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Required Receivable Files, the Collateral Custodian shall be deemed to be acting for as the purpose Bailee of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with enforceability of any Required Receivable File documents or the provisions existence, perfection or priority of Section 18.5any Lien on the Required Receivable Files or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Receivable File documents that are originals or copies shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure fire resistant facilities in accordance with the Collateral Custodian’s customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets custody, at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation All Required Receivable File documents that are originals or copies shall be marked with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesaccess.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Servicing Report in accordance with Section 2.7 and 2.8, as applicable, (the “Payment Duties”).
(v) On the third Business Day of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form acceptable to the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or Administrative Agent and the Collateral Manager, or a Responsible Officer, Custodian) an updated list of Receivables in the case of the Agent, concerning the use, handling its possession and disposition of the Collateral Obligation Filesan updated exceptions report.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided similar collateral that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionholds as collateral custodian for others.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CLST Holdings, Inc.), Revolving Credit Agreement (CLST Holdings, Inc.)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall performand the Backup Servicer) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, on behalf the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent, the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iix) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)any Required Loan Documents, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a fireproof safe or fireproof file cabinet;
(specified on an accompanying Schedule of Collateral Obligations supplementx) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04;
(xi) directing the sale or substitution of Collateral Obligation File Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xiv) delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, and Updated Assigned Value in accordance with the terms hereof. Promptly upon hereof (including paying the receipt compensation of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.Nationally Recognized Valuation Firms); and
(iixvi) With respect to each Collateral Obligation File which has been or will complying with such other duties and responsibilities as may be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian required of the Secured Parties, Servicer by this Agreement. It is acknowledged and has no instructions to hold any Collateral Obligation File for the benefit of any agreed that in circumstances in which a Person other than the Secured Parties Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and undertakes to perform agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such duties and only such duties as are specifically set forth performance would conflict with or result in this Agreement. In so taking and retaining custody a breach of any of the Collateral Obligation Filesexpress terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance (b) have determined that there is no other commercially reasonable performance that it could render consistent with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession express terms of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody Loan Agreements which would result in all or a portion of all Collateral Obligation Files in its possession in secure facilities the servicing duties being performed in accordance with customary standards for this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such custody and shall reflect in its records the interest non-performance including performing as much of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at servicing duties as possible and performing such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents commercially reasonable or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance similar duties consistent with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlLoan Agreements.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (SLR Investment Corp.)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Asset Documents delivered by the Collateral Manager shall deliver, on or prior Seller pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and without any the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such receipt discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Collateral ManagerSeller. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent and the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Asset Documents or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Asset Document shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian All Required Asset Documents shall keep the Collateral Obligation Files be clearly segregated from any other documents or instruments in its filesmaintained by the Collateral Custodian.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in non-complying Assets and the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesapplicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the similar Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the it holds as Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Sections 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementand 3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents and without any reviewthe related Loan Asset Checklist, the Collateral Custodian shall send notice of review the Required Loan Documents to confirm that (A) the Obligor name matches the Loan Asset Checklist, (B) such receipt Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist has been provided to the Collateral ManagerCustodian (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the loan balance listed on the related Loan Tape (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian is acting exclusively as the custodian unable to confirm clauses (A) or (D) of the Secured PartiesReview Criteria, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any other Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer and the Administrative Agent of such determination and provide the Servicer and the Administrative Agent with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period and the Administrative Agent has provided the Servicer with written confirmation of such non-compliance, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no instructions to hold any Collateral Obligation File for longer be included in the benefit calculation of any Person other Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A Section 5.06(c) or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Administrative Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), commencing in July 2016, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (iin a form mutually agreeable to the Administrative Agent and the Collateral Custodian) act exclusively as Collateral Custodian identifying each Loan Asset for which it holds Required Loan Documents and the Secured Parties, (ii) hold all documents constituting applicable Review Criteria that any Loan Asset fails to satisfy. The Servicer shall have 20 Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such Collateral Obligation File received by it for non-compliance has not been cured within such time period and the exclusive use and benefit of Administrative Agent has provided the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or Servicer with written instructions furnished by the Agent; providedconfirmation of such non-compliance, that such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the event calculation of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlany Borrowing Base hereunder until such deficiency is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received actual knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager Custodian. Notice or knowledge of any matter by ▇▇▇▇▇ Fargo in its capacity as Administrative Agent or Lender and other publically available information shall not constitute notice or knowledge of the Borrower referring to this Agreement, describing such event Collateral Custodian.
(iv) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume reasonably request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that there is no Event will help the Collateral Custodian to identify and verify the Borrower’s identity (and in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of Defaultgood standing, Unmatured Event of Defaultlicense to do business, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceother pertinent identifying information.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Solar Capital Ltd.), Consent and Omnibus Amendment (Solar Capital Ltd.)
Duties. The From the Closing Date until its removal or replacement pursuant to Section 11.05 or Section 11.07, as applicable, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents (the “Review Period”), the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents does not match the balance set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Administrative Agent and the Servicer of such determination and deliver to the Administrative Agent and the Servicer a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral ManagerCustodian’s delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, South Carolina, 29501, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default Borrower or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager Servicer hereunder or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of under any such occurrenceother Transaction Document.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A on the signature pages attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Fifth Street and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Fifth Street Finance Corp), Loan and Servicing Agreement (Fifth Street Finance Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Borrower, each Agent and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian Custodian, any Agent or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the AgentFacility Agent in the absence of its own bad faith, fraud, gross negligence, willful misconduct or reckless disregard. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Services Provider shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServices Provider, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Services Provider in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServices Provider, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral ManagerServices Provider, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Facility Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Defaulta Facility Termination Event, Unmatured Event of DefaultFacility Termination Event, Unmatured Collateral Manager Services Provider Event of Default or Collateral Manager Event of Default Services Provider Event of Default unless the Collateral Custodian has received written notice from the Facility Agent, Collateral Manager Services Provider or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of DefaultFacility Termination Event,” “Notice of Unmatured Event of DefaultFacility Termination Event,” “Notice of Unmatured Collateral Manager Services Provider Event of Default,” or “Notice of Collateral Manager Services Provider Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of DefaultFacility Termination Event, Unmatured Event of DefaultFacility Termination Event, Unmatured Collateral Manager Services Provider Event of Default or Collateral Manager Services Provider Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Owl Rock Capital Corp), Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior Required Loan Documents delivered by each Borrower pursuant to the applicable Funding Date (but no more than three (3Section 5.01(f) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within ten (10) Business Days of its receipt of the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Custodian shall review such Required Loan Documents to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings identified on the related Loan Asset Checklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included and (D) the stated balance, Portfolio Asset number and Obligor name, as applicable, with respect to such Portfolio Asset is referenced on the Loan Asset Schedule (such items in clauses (A) through (D) above, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian a hard copy or an electronic copy of the related Loan Asset Checklist which contains the Portfolio Asset information with respect to the Required Loan Documents being delivered, identification number and without the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents for any Loan Asset shall be limited to reviewing such Required Loan Documents based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such receipt discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Portfolio Asset Servicer, the Calculation Agent and the Administrative Agent of such determination and provide the Portfolio Asset Servicer with a list of the non-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit E) by the Portfolio Asset Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral ManagerCustodian’s delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Required Loan Documents which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Required Loan Documents and any other Loan Asset Files, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting and on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Loan Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Schedule III hereto, or at such other offices office as shall be specified to the Administrative Agent and the Portfolio Asset Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation File Custodian shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation Files clearly segregated from Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other documents or instruments in its filesLoan Asset Files delivered to the Collateral Custodian with any other files of the Collateral Custodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall controlBorrower and the Calculation Agent (in a form mutually agreeable to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.), Loan and Servicing Agreement (TCG BDC II, Inc.)
Duties. The From the Closing Date until its removal or replacement pursuant to Section 11.05 or Section 11.07, as applicable, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents does not match the balance set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Administrative Agent and the Servicer of such determination and deliver to the Administrative Agent and the Servicer a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral ManagerCustodian’s delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, South Carolina, 29501, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be deemed to assume any obligations or liabilities of such proceedings shall be borne by the BorrowerBorrower or Servicer hereunder or under any other Transaction Document.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents Delivered in physical form at one of its offices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and from time to time upon notice to the Borrower, the Investment Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) five Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Investment Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such receipt documents shall have been delivered by the Borrower to or otherwise made available to the Collateral Manager, the Agent and each Lender Administrative Agent).
(ii2) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as Custodial Office and shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Affiliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence Borrower or Investment Manager hereunder or under any other Transaction Document.
(5) The Collateral Custodian shall have no obligation to review or verify whether the Borrower or the Investment Manager on its behalf has obtained and delivered (or made available to the Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of an Event of DefaultCollateral Obligations hereunder, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless and the Collateral Custodian has received written notice from shall have no obligation to maintain the Agent, Collateral Manager or Transaction Data Room on behalf of the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceBorrower.
Appears in 2 contracts
Sources: Credit Agreement (Apollo Debt Solutions BDC), Credit Agreement (Apollo Debt Solutions BDC)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Asset Documents delivered by the Collateral Manager shall deliver, on or prior Seller pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account 3.2 hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and without any the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such receipt discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Collateral ManagerSeller. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent and the Secured Parties; provided, however that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Asset Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Asset Document shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian All Required Asset Documents shall keep the Collateral Obligation Files be clearly segregated from any other documents or instruments in its filesmaintained by the Collateral Custodian.
(iv) With respect The Collateral Custodian shall make payments pursuant to the documents comprising terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in non-complying Assets and the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesapplicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such Collateral Obligation File or a document included within such Collateral Obligation File care and attention as directed by the Agent in writing, which shall give a direction consistent it employs with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the similar Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the it holds as Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. The Collateral Custodian From the Second Restatement Date until its removal pursuant to Section 8.5, the Trustee shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Trustee shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Required Loan Files delivered by the Borrower pursuant to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Section 3.2 hereof in accordance with the terms hereofand conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Trustee, for the benefit of the Secured Parties. Promptly upon the Within two Business Days of its receipt of any Required Loan File, the Trustee shall review such Required Loan File to confirm that (A) the loan documents and instruments in such Required Loan File have been properly executed and have no missing or mutilated pages, (B) there is evidence that UCC and other filings (to extent identified on the related Loan Checklist as being required by the Required Loan File) have been made, (C) if listed on the Loan Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) the related original Loan balance, Loan number and Obligor name with respect to such Loan is referenced on the related Loan Checklist and is not a duplicate Loan (based on the Loan number) (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Trustee, in connection with each delivery of Collateral Obligation Files Required Loan File hereunder to the Trustee, the Servicer shall provide to the Trustee an electronic file (in Microsoft EXCEL® or a comparable format) that contains the Loan number, Obligor name, original loan balance and without any the related Loan Checklist. At the conclusion of such review, the Trustee shall deliver to the Servicer, the Borrower and the Administrative Agent a collateral receipt in the form of Exhibit L attached hereto (a “Collateral Custodian Receipt”). If any Collateral Receipt discloses any deficiencies (a “Deficiency”) in any of the Required Loan Files, the Trustee shall send notice promptly notify the Administrative Agent and the Servicer of such receipt Deficiency and provide them with an exception report specifying the Loans which have a Deficiency and the Review Criteria that they fail to satisfy. The Servicer shall have fifteen (15) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by a Loan with any Review Criteria, the Trustee shall promptly notify the Borrower and the Administrative Agent of such determination by providing an updated exception report to such Persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within fifteen (15) Business Days of the Trustee’s delivery of such report, the Trustee shall return any Loan which fails to satisfy a Review Criteria to the Collateral ManagerBorrower or its designee. Other than the foregoing, the Agent and each Lender AgentTrustee shall not have any responsibility for reviewing, inspecting or examining any Required Loan File to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Required Loan Files, the Collateral Custodian Trustee shall be deemed to be acting for as the purpose Bailee of perfecting the Collateral AgentSecured Parties; provided that the Trustee makes no representations as to the enforceability of any Required Loan File documents or the existence, perfection or priority of any Lien on the Required Loan Files or the instruments therein; and provided further that, the Trustee’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties as agent shall be released from the possession of the Collateral Custodianlimited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Loan File documents that are originals or copies shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure fire resistant facilities in accordance with the Trustee’s customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets custody, at the office of the Collateral Custodian locations specified in Annex A on Schedule III attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Collateral Manager Servicer by the Trustee in a written notice delivered at least thirty (30) 45 days prior to such change. Each Collateral Obligation File All Required Loan Files shall be marked with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesaccess.
(iv) With respect On the third Business Day of each month, the Trustee shall provide to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions Servicer (in a form acceptable to the Administrative Agent and the Trustee) an updated list of the Agent, the Agent’s written instructions shall controlLoans in its possession and an updated exceptions report.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerperforming its custodial duties, the Agent, any Agent, Trustee shall use the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type same degree of levy, attachment, writ or court order care and attention as it employs with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files similar collateral that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File it holds as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowercustodian for others.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Revolving Credit Agreement (NewStar Financial, Inc.), Revolving Credit Agreement (NewStar Financial, Inc.)
Duties. The Investment Advisor shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Custodian from time to time, all in accordance in all material respects with Applicable Law and the Advisor Standard. Subject to the terms of this Agreement (including Section 11.04 and Article VI), the Investment Advisor has the sole and exclusive authority to make any and all decisions with respect to the Collateral and take or refrain from taking any and all actions with respect to the Collateral. Without limiting the foregoing, the duties of the Investment Advisor shall performinclude the following:
(i) supervising the Collateral, including communicating with Obligors, executing amendments, providing consents and waivers, exercising voting rights, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) maintaining all necessary records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent and the Custodian) in respect of the management of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent or any Lender may reasonably request and which can be obtained without any undue burden or expense;
(iii) maintaining and implementing administrative and operating procedures (including an ability to recreate records evidencing the Collateral in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral;
(iv) promptly delivering to the Administrative Agent, each Lender, the Collateral Agent or the Custodian, from time to time, such information and records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender, the Custodian or the Collateral Agent may from time to time reasonably request and which can be obtained without any undue burden or expense;
(v) identifying each Collateral Asset in its internal records to reflect the ownership of such Collateral Asset by the Borrower;
(vi) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be asserted by an Obligor with respect to any Collateral Asset (or portion thereof) of which it has actual knowledge or has received notice;
(vii) maintaining the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral;
(iviii) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each Collateral Obligation File make payments pursuant to the Collection Account in accordance with terms of the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.Payment Date Report;
(iiix) With respect to each Collateral Obligation File which has been or will be delivered to assisting the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance Borrower with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, purchase and sale of and payment for the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use Assets and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.Eligible Investments;
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)
Duties. The On or before the initial Funding Date, and until its removal pursuant to Section 7.5 or resignation pursuant to Section 7.7, the Collateral Custodian Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Agent shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the loan balance listed on the related Loan Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Agent, the Collateral Manager shall provide to the Collateral Agent a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable) of the related Loan Checklist that contains a list of all related Required Loan Documents and without any whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian Agent is unable to confirm the Review Criteria, the Collateral Agent shall send notice within one (1) Business Day notify the Collateral Manager and the Borrower of such receipt determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and each Lender such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit D by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesUnderlying Instruments, the Collateral Custodian Agent shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File duties as agent shall be released from the possession of the Collateral Custodianlimited to those expressly contemplated herein.
(iii) The Collateral Custodian All Required Loan Documents that are originals shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records fire resistant vaults, rooms or cabinets at the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession offices of the Collateral Agent (other than documents delivered electronically) set forth in Section 5.5(c). All Required Loan Documents shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian Agent shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any other documents or instruments in its filesAgent.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian Agent shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, the Agent’s written instructions such Loan shall controlcease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the case Administrative Agent deems necessary or desirable in order to exercise or enforce any of the Borrower rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Collateral Manager, or a Responsible Officer, in Borrower which conflict with any instructions received by the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation FilesAgent shall rely on and follow the instructions given by the Administrative Agent.
(vi) In The Collateral Agent shall, promptly upon its actual receipt of a Borrowing Base Certificate from the event that (i) Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Borrowing Base Certificate, any deliver such calculation to each of the Administrative Agent, the Borrower and Collateral Manager, the Collateral Custodian or Manager within one (1) Business Day of receipt by the Collateral Agent of such Borrowing Base Certificate. The Collateral Agent shall also make required calculations for each Payment Date Statement as of the day that is four (4) Business Days prior to the applicable Payment Date, and deliver such calculations to the Borrower and the Collateral Manager (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Collateral Manager) for the Collateral Manager’s (or Administrative Agent’s, as applicable) review and approval no later than two (2) Business Days prior to such Payment Date. Upon the approval (which may be served by email) by the Collateral Manager (or after delivery of a third party with any type Notice of levyExclusive Control, attachmentthe Administrative Agent), writ the Payment Date Statement shall constitute instructions by the Collateral Manager (or court order with respect after delivery of a Notice of Exclusive Control, the Administrative Agent) to any the Collateral Obligation File Agent to withdraw on the related Payment Date from the applicable Collection Account and pay or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than transfer amounts set forth in such report in the manner specified, and in accordance with the provisions of this Agreementpriorities established, the party receiving such service shall promptly deliver in Section 2.7 or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papersSection 2.8, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowerapplicable.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement.
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) All calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Adjusted Borrowing Value, Assigned Value and Unrestricted Cash of any Obligor shall be made exclusively using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Custodian in writing Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian Agent hereunder, the Collateral Custodian Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that . Each of the Administrative Agent, the Borrower and the Collateral Custodian Manager shall not timely provide to the Collateral Agent the information required to be delivered by it under this Agreement and any other Transaction Document, and such other information as may be requested by the Collateral Agent in connection with its verification and reporting duties hereunder. Each of the Administrative Agent, the Borrower and the Collateral Manager shall assist and cooperate with the Collateral Agent in connection with the preparation or verification by the Collateral Agent of all reports, statements, calculations and certificates required in connection with the Collateral Agent’s duties hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise the Collateral Agent in a timely manner of the results of any determinations, designations and selections made by it relating to the acquisition or disposition of any Collateral and supply the Collateral Agent with such other information as the Collateral Agent may from time to time request with respect to the Collateral to permit the Collateral Agent to perform its obligations hereunder, including any information that may be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of under this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory any other Transaction Document with respect thereto). In to or as to the event the Collateral Custodian requests the consent designation or characterization of the Agent any Loans and the monitoring of any acquisition or disposition of any Loans and whether a credit amendment has occurred. The Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed have no obligation to have declined to consent to determine whether any Loan Asset meets the relevant actiondefinition of “Eligible Loan”.
(viiixvi) The Nothing herein shall prevent the Collateral Custodian shall not be liable for Agent or any action taken, suffered of its Affiliates from engaging in other businesses or omitted by it in accordance with the request or direction from rendering services of any Secured Party, kind to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeany Person.
(xvii) Concurrently herewith, the Administrative Agent directs UMB Bank, National Association as Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceAgent to enter into the Securities Account Control Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Stepstone Private Credit Fund LLC), Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 5.01(f) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within ten (10) Business Days of its receipt of the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Custodian shall review such Required Loan Documents to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC financing statements and other filings identified on the related Loan Asset Checklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included and (D) the stated balance, Portfolio Asset number and Obligor name, as applicable, with respect to such Portfolio Asset is referenced on the Loan Asset Schedule (such items in clauses (A) through (D) above, collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian a hard copy or an electronic copy of the related Loan Asset Checklist which contains the Portfolio Asset information with respect to the Required Loan Documents being delivered, Portfolio Asset number and without the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents for any Loan Asset shall be limited to the Review Criteria based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is not as is set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such receipt discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Portfolio Asset Servicer, the Calculation Agent and the Administrative Agent of such determination and provide the Portfolio Asset Servicer with a list of the non-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit E) by the Portfolio Asset Servicer and approved by the Majority Lenders within 10 Business Days of the Collateral ManagerCustodian's delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Required Loan Documents which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting and on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Loan Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The All Required Loan Documents delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Schedule III hereto, or at such other offices office as shall be specified to the Administrative Agent and the Portfolio Asset Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation File Custodian shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation Files clearly segregated from Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other documents or instruments in its filesLoan Asset Files delivered to the Collateral Custodian with any other files of the Collateral Custodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Majority Lenders.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall controlBorrower and the Calculation Agent (in a form mutually agreeable to the Administrative Agent (at the direction of the Majority Lenders) and the Collateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Carlyle Secured Lending III), Loan and Servicing Agreement (Carlyle Secured Lending III)
Duties. The Until its removal pursuant to Section 5(e), the Collateral Custodian shall perform, perform on behalf of the Collateral Agent and the Secured Parties, the following duties and obligations:
(iA) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files Required Asset Documents delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with by any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Pledgor in accordance with the terms hereofand conditions of this Pledge Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Collateral Agent as collateral agent for the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review such Required Asset Documents to confirm that (A) such Required Asset Documents, to the extent indicated on the Asset Checklist, have been executed and, on their face, have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) are contained in the Asset File and have a file stamp set forth thereon, (C) a certificate of insurance (as set forth on the Asset Checklist) is contained in the Asset File, and (D) the related Asset identification number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the Asset Checklist and without any the related Asset List that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. At the conclusion of such review, the Collateral Custodian shall send notice of deliver a receipt in the form attached hereto as Exhibit 5(b). The Servicer and the related Pledgor shall use commercially reasonable efforts to correct any non-compliance with a Review Criteria identified on such receipt to the Collateral Manager, the Agent and receipt. Two times each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodiancalendar month, the Collateral Custodian shall deliver to the Servicer and the Collateral Agent an exception report identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Collateral Agent or as otherwise directed by the Collateral Agent within ten Business Days of the Collateral Custodian’s delivery of such exception report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the applicable Person; provided that no such approval or direction of the Collateral Agent shall be required after the occurrence of the Credit Agreement Termination Date so long as (i) the Collateral Agent shall continue to have a first priority perfected security interest in the Asset so returned and any Proceeds thereof, and (ii) the Servicer, in requesting the return of such Asset, is acting exclusively as in good faith consistent with past practice. Other than the custodian foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents; provided further, that (x) by requesting the return of any Asset after the occurrence of the Secured PartiesCredit Agreement Termination Date pursuant to this Section 5(b)(ii)(A), the Servicer represents and warrants that clauses (i) and (ii) of the foregoing proviso are true and correct in all material respects, and has (y) the Collateral Custodian shall have no instructions to hold any Collateral Obligation File duty, obligation or responsibility for the benefit of any Person other than the Secured Parties and undertakes to perform making such duties and only determination or verifying that such duties as matters are specifically set forth in this Agreement. true.
(B) In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession agent of the Collateral Agent (other than documents delivered electronically) and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be maintained limited to those expressly contemplated herein.
(C) All Required Asset Documents kept by the Collateral Custodian shall be kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule 5(b) attached hereto, or at such other offices office as shall be specified to the Collateral Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked with an appropriate identifying label electronically tracked and maintained in such a manner so as to permit retrieval and access by access. All notes and Loan Registers included in the Pledged Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files be clearly electronically or physically segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, maintained by the Collateral Custodian shall (i) act exclusively as Collateral Custodian for Custodian. At the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit reasonable request of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Collateral Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Initial Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent Days) deliver to the relevant actionCollateral Agent copies of all Asset Files that have not been segregated.
(viiiD) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeperforming its duties, the Collateral Custodian may conclusively assume shall use the same degree of care and attention as it employs with respect to similar collateral that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceholds as collateral custodian.
Appears in 2 contracts
Sources: Pledge Agreement (Capitalsource Inc), Pledge Agreement (Capitalsource Inc)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral CustodianCustodian shall take and retain custody of the Portfolio Asset Files and the Required Portfolio Documents delivered by the Portfolio Asset Servicer and Borrower pursuant to Section 3.02(c) or 3.04(d), as all for the duly appointed agent benefit of the Administrative Agent on behalf of the Secured Parties, for these purposes, acknowledges that . Within five Business Days of receipt of any Required Portfolio Documents (if the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but Custodian receives no more than three (310 Portfolio Asset Files during such five Business Day period) Business Days after such Funding Date, except or within a reasonable timeframe as set forth in Section 10.20)mutually agreed upon, the Collateral Obligation Files delivered Custodian shall review such Required Portfolio Documents to it for each Collateral Obligation confirm that (A) the principal amount and the Obligor name on the applicable Loan Agreement and any related promissory note matches that on the Portfolio Asset Schedule and the Portfolio Asset number on the applicable Loan Agreement matches that on the Portfolio Asset Schedule, as applicable, (B) such Required Portfolio Documents, have been executed (either an original or a copy, as indicated on the related Portfolio Asset Checklist), appear to relate to such Portfolio Asset and have no mutilated pages, (C) filed copies of the UCC financing statements and other filings identified on the related Portfolio Asset Checklist are included and (D) if listed on the Schedule related Portfolio Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral Obligations attached for such Portfolio Asset is included (the items to be reviewed pursuant to this sentence, collectively, the related Asset Approval Request“Review Criteria”). The In order to facilitate the foregoing review by the Collateral Custodian acknowledges that Custodian, in connection with any each delivery of a Portfolio Asset Approval RequestFile hereunder to the Collateral Custodian, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered the Portfolio Asset Servicer shall provide to the Collateral Custodian from time a hard copy (which may be proceeded by an electronic copy and separately uploaded by the Borrower or the Portfolio Asset Servicer or its designee to timethe designated ▇▇▇▇▇▇▇.▇▇▇; provided that each .pdf document will be identified with the loan number in the format “LoanNumber.DocumentName.pdf” (example, 12345.mortgage.pdf)) of the related Portfolio Asset Checklist which contains the Portfolio Asset information with respect to the Portfolio Asset File being delivered, identification number and that the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian will provide Custodian’s obligation to review the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation Portfolio Asset File shall be limited to the Collection Account in accordance with Review Criteria and based on the terms hereofinformation provided on the related Portfolio Asset Checklist. Promptly upon If, at the receipt conclusion of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice determine that (1) the principal balance of the Portfolio Asset with respect to which it has received the Portfolio Asset File does not match the principal balance set forth on the Portfolio Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, Initial Lender and the Facility Servicer of such receipt discrepancy within one Business Day or (2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Borrower, Administrative Agent, Initial Lender and the Facility Servicer of such determination and provide the Borrower and Facility Servicer with a list of the non-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy. The Borrower shall have ten Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing by the Borrower or Portfolio Asset Servicer in accordance with Section 9.08 and approved by the Administrative Agent (acting at the direction of the Majority Lenders) within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Portfolio Asset File which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Portfolio Asset File.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Portfolio Asset Files, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Portfolio Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation All Portfolio Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained continuously stored in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified as the address of the Collateral Custodian specified in Annex A on Schedule IV or at such other offices office as shall be specified to the Agent Administrative Agent, Facility Servicer and the Borrower by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep segregate the Collateral Obligation Portfolio Asset Files clearly segregated from any other documents or instruments in on its filesinventory system.
(iv) With respect On each Reporting Date following the first delivery of Required Portfolio Documents to the documents comprising each Collateral Obligation FileCustodian, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions Borrower and the Lenders (in a form mutually agreeable to the Administrative Agent (at the direction of the Majority Lenders) and the Collateral Custodian) identifying each Portfolio Asset for which it holds a Portfolio Asset File and the applicable Review Criteria that any Portfolio Asset File fails to satisfy. The Borrower shall controlhave ten Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower have no duties or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered obligations other than those specifically set forth herein or as may subsequently be agreed to in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed writing by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrowerparties hereto.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (ACRES Commercial Realty Corp.), Loan and Servicing Agreement (Exantas Capital Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestObligation. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case a Responsible Officer of the Borrower Borrower, the Servicer or the Collateral ManagerFacility Agent, or a Responsible Officer, in the case of the Agentas applicable, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Sources: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Duties. The From the Original Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Sections 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementand 3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A on the signature pages attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to BDCA and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (xA) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (yB) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Tape and a hard copy of the Loan Checklist, the Collateral Custodian shall review the Required Loan Documents delivered to it to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan number and Obligor name, as applicable, with respect to such Loan is referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Checklist which contains the Loan information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan with respect to which it has received Required Loan Documents is less than as set forth on the Loan Tape, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan which fails to satisfy any Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in set forth on Annex A to this Agreement, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to the documents comprising On each Collateral Obligation FileReporting Date, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan for which it holds Required Loan Documents and the applicable Review Criteria that any Loan fails to satisfy.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall accept only written instructions of an Executive Officernot have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, in and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the case other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the Borrower or foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Manager, Custodian shall not be required to exercise any discretion hereunder and shall have no investment or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Filesmanagement responsibility.
(vi) In the event that (i) the BorrowerIf, the Agent, any Agent, the Collateral Managerin performing its duties under this Agreement, the Collateral Custodian or is required to decide between alternative courses of action, the Collateral Custodian may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Custodian may, but shall be served by a third party with under no duty to, take or refrain from taking any type such courses of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedingsaction. The Collateral Custodian shall, shall act in accordance with instructions received after such two (2) Business Day period except to the extent permitted by lawit has already, continue in good faith, taken or committed itself to hold take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and maintain all independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(vii) Nothing herein shall prevent the Collateral Obligation Files Custodian or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests Granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(viiii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS Investment Corp II)
Duties. The Collateral Custodian Manager shall performtake or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral from time to time, all in accordance with Applicable Law and the Collateral Management Standard. Without limiting the foregoing, the duties of the Collateral Manager shall include the following:
(i) supervising the Collateral, including communicating with Obligors, negotiating and executing on behalf of the Borrower amendments, restatements, supplements and other modifications (including, without limitation, in respect of restructuring agreements, prepackaged plans and other documents related to restructuring arrangements), negotiating and providing on behalf of the Borrower consents and waivers, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) preparing and submitting claims to, and acting as post-billing liaison with, Obligors on each Loan (for which no administrative or similar agent exists);
(iii) maintaining all necessary servicing records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent and the Collateral Custodian) in respect of the servicing of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent or each Lender may reasonably request;
(iv) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral;
(v) promptly delivering to the Administrative Agent, each Lender, the Collateral Agent or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender, the Collateral Agent or the Collateral Custodian may from time to time reasonably request;
(vi) identifying each Loan clearly and unambiguously in its servicing records to reflect that such Loan is owned by the Borrower and that the Borrower is pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vii) notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(viii) using its commercially reasonable efforts to maintain the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral;
(iix) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each Collateral Obligation File make payments pursuant to the Collection Account terms of the Collateral Management Report in accordance with Section 2.7, Section 2.8 and Section 2.9;
(x) directing the terms hereof. Promptly upon the receipt of any such delivery sale or substitution of Collateral Obligation Files in Section 2.16 and without any review, Section 2.17;
(xi) providing assistance to the Borrower with respect to the purchase and sale of and payment for the Loans;
(xii) instructing the Obligors and the administrative agents on the Loans to make payments directly into the Collection Account; and
(xiii) complying with such other duties and responsibilities as may be required of the Collateral Custodian shall send notice Manager by this Agreement. It is acknowledged and agreed for purposes of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File this Article VI that in circumstances in which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any a Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order Manager acts as lead agent with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this AgreementLoan, the party receiving such service Collateral Manager shall promptly deliver or cause to be delivered to the other parties to this Agreement (perform its servicing duties hereunder only to the extent not prohibited by Applicable Law) copies of all court papersthat, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by lender under the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderrelated loan syndication Underlying Instruments, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencedo so.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Franklin BSP Lending Corp), Loan and Servicing Agreement (Business Development Corp of America)
Duties. The From the Closing Date until Restatement Date, the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made as listed on the Loan Asset Checklist, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Manager, Custodian shall notify the Agent and each Lender Agentthe Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, that the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall provide a written report to the Agent (iwho will provide each Lender with a copy promptly upon receipt thereof) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of Servicer (in a form mutually agreeable to the Agent, Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Obligation File Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a document included within such Collateral Obligation File written request in the form of Exhibit N), as directed applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Agent in writingBorrower hereunder, which shall give a direction consistent or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with such determinationrespect to Article VII. Expenses of In the event the Collateral Custodian incurred as a result of such proceedings shall be borne receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the BorrowerAgent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(viiii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 2 contracts
Sources: Omnibus Amendment (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Duties. The From the Closing Date until Restatement Date, the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made as listed on the Loan Asset Checklist, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note, assignment agreement or participation interest documentation, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents USActive 52762757.1552762757.22 158 based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Manager, Custodian shall notify the Agent and each Lender Agentthe Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, that the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall provide a written report to the Agent (iwho will provide each Lender with a copy promptly upon receipt thereof) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of Servicer (in a form mutually agreeable to the Agent, Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Obligation File Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a document included within such Collateral Obligation File written request in the form of Exhibit M), as directed applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Agent in writingBorrower hereunder, which shall give a direction consistent or to enable any of them USActive 52762757.1552762757.22 159 to exercise or enforce any of their respective rights hereunder, including any rights arising with such determinationrespect to Article VII. Expenses of In the event the Collateral Custodian incurred as a result of such proceedings shall be borne receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the BorrowerAgent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(viiii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager or Custodian.
(iv) The parties acknowledge that in accordance with the Borrower referring to this Agreement, describing such event Customer Identification Program (CIP) requirements under the USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that there is no Event will help the Collateral Custodian to identify and verify the Borrower’s identity (in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of Defaultgood standing, Unmatured Event of Defaultlicense to do business, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceother pertinent identifying information.
Appears in 1 contract
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral ManagerFacility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of after its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law, the Risk and Collection Policies (if CGMSTCG is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Termination Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, negotiating and executing amendments, restatements, supplements and other modifications (including, without limitation, in respect of restructuring agreements, prepackaged plans and other documents related to restructuring arrangements), negotiating and providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall performand the Backup Servicer) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, on behalf the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the 129 DMSLIBRARY01\32370595.v1 event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Account Bank, the Backup Servicer, the Collateral Administrator or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, the Account Bank, the Collateral Custodian, the Backup Servicer, the Collateral Administrator or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent, the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Risk and Collection Policies;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iix) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)any Required Loan Documents, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a fireproof safe or fireproof file cabinet;
(specified on an accompanying Schedule of Collateral Obligations supplementx) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04;
(xi) directing the sale or substitution of Collateral Obligation File Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account in accordance established and maintained with the terms hereof. Promptly upon Collateral Agent; 130 DMSLIBRARY01\32370595.v1
(xiv) delivering the receipt of any such delivery of Collateral Obligation Loan Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, Updated Assigned Value, and Value Adjusted Assigned Value, including, without limitation, taking all actions necessary (including paying the Collateral Custodian is acting exclusively as the custodian compensation of the Secured Parties, Nationally Recognized Valuation Firms) in establishing and has no instructions to hold any Collateral Obligation File for maintaining the benefit Scheduled Valuation Process in accordance with Section 6.02(d) below; and
(xvi) complying with such other duties and responsibilities as may be required of any the Servicer by this Agreement. It is acknowledged and agreed that in circumstances in which a Person other than the Secured Parties Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and undertakes to perform agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such duties and only such duties as are specifically set forth performance would conflict with or result in this Agreement. In so taking and retaining custody a breach of any of the Collateral Obligation Filesexpress terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance (b) have determined that there is no other commercially reasonable performance that it could render consistent with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession express terms of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody Loan Agreements which would result in all or a portion of all Collateral Obligation Files in its possession in secure facilities the servicing duties being performed in accordance with customary standards for this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such custody and shall reflect in its records the interest non-performance including performing as much of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at servicing duties as possible and performing such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents commercially reasonable or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance similar duties consistent with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlLoan Agreements.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents Delivered (as defined in the Pledge and Security Agreement) in physical form at one of its offices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and from time to time upon notice to the Borrower, the Investment Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) five Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Investment Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such receipt documents shall have been delivered by the Borrower to or otherwise made available to the Collateral Manager, the Agent and each Lender Administrative Agent).
(ii2) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as Custodial Office and shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Affiliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence Borrower or Investment Manager hereunder or under any other Transaction Document.
(5) The Collateral Custodian shall have no obligation to review or verify whether the Borrower or the Investment Manager on its behalf has obtained and delivered (or made available to the Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of an Event of DefaultCollateral Obligations hereunder, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless and the Collateral Custodian has received written notice from shall have no obligation to maintain the Agent, Collateral Manager or Transaction Data Room on behalf of the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceBorrower.
Appears in 1 contract
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. i. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule shall take and retain custody of Collateral Obligations supplementthe Required Loan Documents delivered by each Borrower pursuant to Section 5.01(f) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within ten (10) Business Days of its receipt of the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Custodian shall review such Required Loan Documents to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings identified on the related Loan Asset Checklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included and (D) the stated balance, Portfolio Asset number and Obligor name, as applicable, with respect to such Portfolio Asset is referenced on the Loan Asset Schedule (such items in clauses (A) through (D) above, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian a hard copy or an electronic copy of the related Loan Asset Checklist which contains the Portfolio Asset information with respect to the Required Loan Documents being delivered, identification number and without the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents for any Loan Asset shall be limited to reviewing such Required Loan Documents based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (1) the stated balance of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With Loan Asset with respect to each Collateral Obligation File which it has been or will be delivered to received the Collateral CustodianRequired Loan Documents is as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such discrepancy within one Business Day or (2) any Review Criteria is acting exclusively as not satisfied, the custodian Collateral Custodian shall within one Business Day notify the Portfolio Asset Servicer, the Calculation Agent and the Administrative Agent of such determination and provide the Portfolio Asset Servicer with a list of the Secured Partiesnon-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit E) by the Portfolio Asset Servicer and has no instructions approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Required Loan Documents which fails to hold any Collateral Obligation File for satisfy a Review Criteria to the benefit of any Person other Borrower. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreementforegoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File.
▇▇. In so ▇▇ taking and retaining custody of the Collateral Obligation Required Loan Documents and any other Loan Asset Files, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting and on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Loan Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian.’s duties shall be limited to those expressly contemplated herein. NAI-15121569431515895953v1213 -102-
(iii) The . All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Schedule III hereto, or at such other offices office as shall be specified to the Administrative Agent and the Portfolio Asset Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation File Custodian shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation Files clearly segregated from Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other documents or instruments in its filesLoan Asset Files delivered to the Collateral Custodian with any other files of the Collateral Custodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent.
iv. On the 12th calendar day of every month (iv) With respect to or if such day is not a Business Day, the documents comprising each Collateral Obligation Filenext succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall controlBorrower and the Calculation Agent (in a form mutually agreeable to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, v. Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that shall take and retain custody of the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Asset Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation Asset listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestSchedule. The Collateral Custodian acknowledges that in connection with any Asset Borrowing or Reinvestment Request and the related Approval RequestNotice (if applicable), additional Collateral Obligation Asset Files (specified on an accompanying the applicable Collateral Asset Schedule of or supplement to the Collateral Obligations supplementAsset Schedule) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation Asset File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation Asset File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Asset Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Administrative Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5as provided herein, no Collateral Obligation Asset File or other document constituting a part of a Collateral Obligation Asset File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation Asset File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation Asset File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Asset Files clearly segregated from any other documents or instruments in its files.. USActive 57710049.13-127-
(iv) With respect to the documents comprising each Collateral Obligation Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case a Responsible Officer of the Borrower Servicer or the Collateral Manager, or a Responsible Officer, in the case of the Agent, Administrative Agent concerning the use, handling and disposition of the Collateral Obligation Asset Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Manager, Servicer or the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by lawLaw, continue to hold and maintain all the Collateral Obligation Asset Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation Asset File or a document included within such Collateral Obligation Asset File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.matter or written notice thereof is received by the Collateral Custodian. USActive 57710049.13-128-
Appears in 1 contract
Sources: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Borrower, each Agent and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at the office located at Deutsche Bank National Trust Company, c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent or, in accordance with Section 18.5, the Servicer; provided that in the event of a conflict between the written instructions of the Facility Agent and the written instructions of the Servicer, the Facility Agent’s written instructions shall control; provided, further, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian Custodian, any Agent or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender AgentSchedule.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at c/o DB Services Americas, Inc., 5▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Duties. The Collateral Document Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Document Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Servicer shall deliver, on or prior to the applicable Funding Date deliver no later than five (but no more than three (35) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request, as applicable. The Collateral Document Custodian acknowledges that in connection with any Asset Approval Request or the related Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian it from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Document Custodian, the Collateral Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Document Custodian.
(iii) The Collateral Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into held by the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Document Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Document Custodian and the Agent. The Collateral Document Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Document Custodian shall (i) act exclusively as Collateral Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Document Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agentthe Servicer, the Collateral Manager, the Collateral Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Document Custodian hereunder, the Collateral Custodian such party shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Document Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, Document Custodian (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Document Custodian requests the consent of the Agent and the Collateral Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Document Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodiansuch party, or the Agent. The Collateral Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default Event of Default unless the Collateral Document Custodian has received written notice from the Agent, Collateral Manager Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Servicer Event of Default,” or “Notice of Collateral Manager Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Servicer Event of Default or Collateral Manager Servicer Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Duties. The From the Closing Date until its resignation pursuant to Section 12.07, its removal pursuant to Section 12.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral CustodianCustodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take and retain custody of electronic copies of the items in the definition of Required Loan Documents, as (including any copies of original items described in clause (a) of such definition) and the duly appointed agent Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) . Within five Business Days after of its receipt of any Required Loan Documents, (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such Funding Date, except as set forth in Section 10.20items), the related Loan Tape and an electronic copy of the Loan Asset Checklist, the Collateral Obligation Files delivered Administrator shall review the items in the definition of Required Loan Documents to it for confirm that, on their face, (each Collateral Obligation item listed on in the Schedule of Collateral Obligations attached Loan Asset Checklist required to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time Administrator pursuant to time, and that this Agreement has been provided to the Collateral Custodian will provide Administrator (the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent Administrator, in connection with all each delivery of applicable Required Loan Documents hereunder to the Collateral Administrator, the Servicer shall provide to the Collateral Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Administrator) of the related Loan Asset Checklist which contains the Loan Asset information necessary with respect to the applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the Collateral Agent represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to credit each Collateral Obligation File to be on its face. If, at the Collection Account in accordance with the terms hereof. Promptly upon the receipt conclusion of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian Administrator shall send notice determine that the Review Criteria is not satisfied, the Collateral Administrator shall within three Business Days notify the Servicer of such receipt determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Administrator’s notification to the Collateral ManagerServicer of its review of the Review Criteria, the Agent Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and each Lender AgentCollateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that neither the Collateral Agent’s security interest therein under Custodian nor the UCC. Except upon compliance with the provisions of Section 18.5Collateral Administrator makes any representations as to, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File and shall be released from responsible for, the possession existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral CustodianCustodian or the Collateral Administrator, as applicable.
(iii) The All original promissory notes actually delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties thereinbe kept at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A ▇▇▇▇, Minnesota 55108, Attention: CLO Trust Services - OSCF LENDING V SPV, LLC, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Administrative Agent) days prior to such change. Each All such documents delivered to the Collateral Obligation File Custodian must be sent by trackable courier service (e.g., UPS or Federal Express) All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) (x) On the Reporting Date of each month and (y) upon demand of the Administrative Agent (provided that prior to the occurrence and continuance of an Event of Default (that has not been waived), the Administrative Agent shall not make such demand more than four times per calendar year), the Collateral Custodian and the Agent. The Collateral Custodian Administrator shall keep identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Obligation Files clearly segregated from Administrator shall identify any other documents or instruments in its files.
(iv) With respect applicable Review Criteria that any Loan Asset fails to the documents comprising each Collateral Obligation Filesatisfy, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlArticle XII.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or nor the Collateral ManagerAdministrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerresponsibilities shall be read into this Agreement, the Agent, any Agent, the Collateral Manager, other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Agent shall be served Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by a third party with any type of levy, attachment, writ or court order with respect to any the other parties hereto that neither the Collateral Obligation File or a document included within a Custodian nor the Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File Administrator shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service exercise any discretion hereunder and shall promptly deliver have no investment or cause to be delivered to the other parties to this Agreement management responsibility.
(to the extent not prohibited by Applicable Lawvi) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the extent permitted by lawCollateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit L), continue as applicable, as requested in order to hold and maintain all allow the Administrative Agent or the Collateral Obligation Files Agent to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Administrative Agent in writing, which shall give a direction consistent with such determination. Expenses of (provided that the Collateral Custodian incurred as a result shall provide notice of any such proceedings shall be borne by conflicting instructions to each of the BorrowerBorrower and the Servicer).
(vii) The parties acknowledge and agree that the Collateral Custodian is not expecting to receive a significant number of original Required Loan Documents. In the event the Collateral Custodian receives an amount in excess of its reasonable expectation, as determined in its sole discretion, the Collateral Custodian may either appoint a sub-agent custodian, or require the Borrower to enter into a document custody agreement in form and substance reasonably acceptable to the Borrower directly with a separate custodian, in respect of such original Required Loan Documents.
(viii) The Administrative Agent may direct the Collateral Custodian in writing and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, or the Collateral Administrator, as applicable (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent and the Collateral Custodian or the Collateral Administrator, as applicable does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 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.
(viiiix) The Neither the Collateral Custodian nor the Collateral Administrator shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. The Neither the Collateral Custodian nor the Collateral Administrator shall not be deemed to have actual or constructive knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received or Collateral Administrator receives written notice from thereof.
(x) [Reserved].
(xi) The Borrower acknowledges that in accordance with the Agent, Collateral Manager or Customer Identification Program (CIP) requirements under the Borrower referring to this Agreement, describing such event USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume reasonably request including, but not limited to, its name, physical address, tax identification number and other information that there will help the Collateral Custodian to identify and verify its identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(xii) In connection with each Payment Date, the Collateral Administrator shall calculate, using the information contained in the Collateral Database and any other information normally maintained by the Collateral Custodian, and subject to the Collateral Administrator’s receipt from the Servicer of the information required to be provided to the Collateral Administrator, each item required to be included the Servicing Report pursuant to Section 6.08(b)(ii) and shall prepare and arrange for the delivery of such information to be included in the Servicing Report and shall deliver a draft of such Payment Date Report not later than the day that is no Event four (4) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of Defaulta Notice of Exclusive Control, Unmatured Event of Default, Unmatured the Collateral Manager Event of Default Agent and the Servicer) for the Servicer’s (or Collateral Manager Event of DefaultAgent’s, in each case unless it has actual knowledge of as applicable) review. The parties acknowledge and agree that the Servicer shall provide, and the Collateral Administrator shall have no duty or responsibility to determine, the underlying information (or perform the underlying calculations) provided to it. The parties further acknowledge that the Collateral Administrator shall not be responsible for determining the Interest with respect to any such occurrenceAdvance, which shall be solely provided by the Administrative Agent.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The From the Closing Date until its removal pursuant to Section 13.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 12.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar Senior Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Capital Southwest Corp)
Duties. The From the Closing Date until its removal pursuant to Section 13.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 12.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (SLR Investment Corp.)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Tape and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Tape, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A on the signature pages attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to G▇▇▇▇ and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Golub Capital BDC, Inc.)
Duties. The Collateral Custodian Manager shall performtake or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral from time to time, all in accordance with Applicable Law and the Collateral Manager Standard. Subject to the terms of this Agreement (including Section 11.04 and Article VI), the Collateral Manager has the sole and exclusive authority to make any and all decisions with respect to the Collateral and take or refrain from taking any and all actions with respect to the Collateral. Without limiting the foregoing, the duties of the Collateral Manager shall include the following (to the extent required under the terms of this Agreement):
(i) supervising the Collateral, including communicating with Obligors, executing amendments, providing consents and waivers, exercising voting rights, enforcing and collecting on the Collateral and otherwise managing the Collateral on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral and providing such reports to the Administrative Agent and each Lender (with a copy to the Collateral Agent, the Collateral Administrator and the Custodian) in respect of the servicing of the Collateral (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent or any Lender may reasonably request in accordance with the requirements of this Agreement and which can be obtained without any undue burden or expense;
(iii) maintaining and implementing administrative and operating procedures (including an ability to recreate servicing records evidencing the Collateral in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral;
(iv) promptly delivering to the Administrative Agent, each Lender, the Collateral Agent, the Collateral Administrator or the Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender, the Custodian, the Collateral Administrator or the Collateral Agent may from time to time reasonably request in accordance with the requirements of this Agreement and which can be obtained without any undue burden or expense;
(v) identifying each Collateral Loan in its internal servicing records to reflect the ownership of such Collateral Loan by the Borrower;
(vi) in accordance with the requirements of this Agreement, notifying the Administrative Agent and each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be asserted by an Obligor with respect to any Collateral Loan (or portion thereof) of which it has actual knowledge or has received notice;
(vii) maintaining the perfected security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral;
(iviii) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Payment Date Report;
(ix) assisting the Borrower with respect to the purchase and sale of and payment for the Collateral Obligation File Loans and Eligible Investments;
(x) instructing the Obligors and/or the administrative agents (as applicable) on the Collateral Loans to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xi) delivering assignments and promissory notes to the Custodian;
(xii) complying with such other duties and responsibilities as may be required of the Collateral Manager by this Agreement; and
(xiii) assisting in the acquisition and sale of Collateral Loans and other Collateral in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent Article X and the Collateral Manager in a written notice at least thirty (30) days prior to such changeStandard. Each Collateral Obligation File shall be marked with an appropriate identifying label It is acknowledged and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, agreed that in the event of circumstances in which a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of Person other than the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order Manager acts as lead agent with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this AgreementLoan, the party receiving such service Collateral Manager shall promptly deliver or cause to be delivered to the other parties to this Agreement (perform its servicing duties hereunder only to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to a lender under the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it applicable Related Documents has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencedo so.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Lord Abbett Private Credit Fund S)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall accept delivery and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.04(b) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents (the “Review Period”) and without any reviewthe related Loan Asset Schedule, the Collateral Custodian shall send notice (i) review the face of each Required Loan Document received to determine whether it appears regular on its face and appears to relate to the related Loan Asset, (ii) confirm that such receipt to Required Loan Documents have been executed (either an original or a copy, as indicated by the Collateral Manager), if applicable, and have no mutilated pages, and (iii) confirm that the related original balance, Loan Asset number and Obligor name (based on such note or assignment agreement contained in such Loan Asset File, as applicable) with respect to such Loan Asset is as referenced on the related Loan Asset Schedule (such items (i) through (iii), the “Review Criteria”). Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents to the extent provided by the Borrower. In receiving any Loan Asset Files hereunder, and in maintaining any listing or providing any report or communication with respect to the Loan Asset Files held hereunder, the Collateral Custodian shall be required only to review such Loan Asset Files in accordance with the Review Criteria. After the Review Period, the Collateral Custodian shall execute and deliver to the Borrower, the Collateral Manager and the Collateral Agent and each Lender Agenta certification more fully described below (a “Collateral Custodian Certification”) substantially in the form attached hereto as Exhibit K, including an attached exception report (an “Exception Report”), listing any Required Loan Document not included in the related Loan Asset File (which Exception Report shall include any document that does not satisfy the Review Criteria).
(ii) With respect The Collateral Custodian shall, in each Collateral Custodian Certification, certify and confirm as to each Loan Asset File listed on the Loan Asset Schedule that, except as noted on the Exception Report attached to such Collateral Obligation File which has been or will be delivered to Custodian Certification: (x) all Required Loan Documents are in the Collateral Custodian’s possession (either an original or an electronic copy in accordance with the requirements set forth in the definition of Required Loan Documents) and (y) all documents contained in the Loan Asset File have been reviewed by the Collateral Custodian in accordance with the Review Criteria. For the avoidance of doubt, the Collateral Custodian is acting exclusively as the custodian Custodian’s sole obligation with respect to any documents delivered to it pursuant to Section 6.08(c) shall be limited to retaining custody of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. documents without further review.
(iii) In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that, the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on the Required Loan Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5such Required Loan Documents; provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iiiiv) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records All Required Loan Documents, to the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of extent originals are delivered to the Collateral Agent (other than documents delivered electronically) Custodian, shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Street, 9th Floor, Chicago, Illinois, or at such other offices office as shall be specified to the Agent Required Lenders and the Collateral Manager by the Collateral Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the original physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(ivv) With respect to On the documents comprising last calendar day of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or and the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling Manager identifying each Loan Asset for which it holds Required Loan Documents and disposition of the Collateral Obligation Filesincluding an Exception Report.
(vi) In the event that (i) the Borrower, the Agent, Notwithstanding any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered provision to the other parties to this Agreement (to contrary elsewhere in the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be deemed to assume any obligations or liabilities of such proceedings shall be borne by the BorrowerBorrower or Collateral Manager hereunder or under any other Transaction Document.
(viii) After the occurrence and during the continuance of an Event of Default, the Collateral Custodian agrees to cooperate with the Collateral Agent (acting at the direction of the Required Lenders) and deliver any Required Loan Documents to the Collateral Agent (pursuant to a written request in the form of Exhibit G) as requested in order to take any action that the Required Lenders deem necessary or desirable in order for the Collateral Agent to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Collateral Agent, the Administrative Agent or the Required Lenders after the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall rely on and follow the instructions given by the Collateral Agent, the Administrative Agent or the Required Lenders, as applicable.
(ii) The Agent Required Lenders may direct the Collateral Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the AgentRequired Lenders; provided that that, the Collateral Custodian shall not be required to take any action hereunder at the request of the AgentRequired Lenders, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent Required Lenders and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent Required Lenders within ten (10) 10 Business Days of its receipt of such request, then the Agent Required Lenders shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received actual knowledge of such matter or written notice thereof is received by the Collateral Custodian from the Administrative Agent, the Collateral Manager Manager, a Lender or the Borrower Borrower, referring to this Agreement, describing such event Event of Default, and stating that such notice is a “Notice of Event of Default,.” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Omnibus Amendment (Blue Owl Technology Finance Corp. II)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Investment Manager, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwiseother than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Duties. The From the Closing Date until its removal pursuant to Section 13.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 12.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Loan and Servicing Agreement (SLR Investment Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Loan Asset Files delivered by the Collateral Manager shall deliver, on or prior Servicer and the Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.203.02(a), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementSection 3.02(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Section 3.04(a) in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within ten Business Days of its receipt of the Loan Asset File for any Loan Asset, the Loan Asset Schedule and a hard copy of the related Loan Asset Checklist, the Collateral Custodian shall review such Loan Asset File to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings identified on the related Loan Asset Checklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Loan Asset is included, and (D) the current balance, Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of a Loan Asset File hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Loan Asset File being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Loan Asset File shall be limited to reviewing such Loan Asset File based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the current balance of the Loan Asset with respect to which it has received the Loan Asset File is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer and the Administrative Agent of such determination and provide the Servicer with a list of the non‐complying Loan Assets and the applicable Review Criteria that they fail to satisfy, which the Servicer shall promptly provide to the Borrower upon receipt of such. The Borrower shall have five Business Days after notice or knowledge thereof to correct any noncompliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit I) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral ManagerCustodian’s delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Loan Asset File which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Loan Asset Files, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent on behalf of the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Loan Asset Files or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation All Loan Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Loan Asset Files shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Loan Asset Files on its inventory system and will not commingle the physical Loan Asset Files with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to KREF and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every Month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Servicer and deliver any Loan Asset File to the Servicer or Administrative Agent (pursuant to a written request in the form of Exhibit I), as applicable, as requested in order to take any action that the Administrative Agent or the Servicer 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 or under any Transaction Document, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Servicer which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Duties. The From the Closing Date until its removal and/or replacement pursuant to Section 11.05 or Section 11.07, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Collateral Obligation Files and without any reviewRequired Loan Documents, the Collateral Custodian shall send notice related Loan Asset Schedule and a hard copy of such receipt to the Collateral ManagerLoan Asset Checklist (provided, the Agent and each Lender Agent.
however, that if more than one hundred (ii100) With respect to each Collateral Obligation File which has been or will be Required Loan Documents are delivered at one time to the Collateral Custodian, the Collateral Custodian is acting exclusively shall have additional time as mutually agreed to by the custodian Collateral Custodian, the Servicer and the Administrative Agent), the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the Secured PartiesUCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and has (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule, and whether there is any discrepancy between the original balance of such Loan Asset and the amount set forth on such Loan Asset Schedule (such items (A) through (D) collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist and the Collateral Custodian shall be under no instructions duty or obligation to hold inspect, review or examine any Collateral Obligation File such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the benefit of represented purpose, any Person assignment or endorsement is in proper form, or any USActive 55125247.5 166 document is other than what it purports to be on its face. If, at the Secured Parties conclusion of such review, the Collateral Custodian shall determine that any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer and undertakes the Administrative Agent of such determination and provide the Servicer and the Administrative Agent with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to perform such duties and only such duties as are specifically set forth in this Agreementsatisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In so addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Administrative Agent, the Agent’s written instructions shall controlServicer and the Collateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other USActive 55125247.5 167 parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Duties. The From the Closing Date until its resignation pursuant to Section 12.07, its removal pursuant to Section 12.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral CustodianCustodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take an retain custody of electronic copies of the items in the definition of Required Loan Documents, as (including any copies of original items described in clause (a) of such definition) and the duly appointed agent Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) . Within five Business Days after of its receipt of any Required Loan Documents, (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such Funding Date, except as set forth in Section 10.20items), the related Loan Tape and an electronic copy of the Loan Asset Checklist, the Collateral Obligation Files delivered Administrator shall review the items in the definition of Required Loan Documents to it for confirm that, on their face, (each Collateral Obligation item listed on in the Schedule of Collateral Obligations attached Loan Asset Checklist required to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time Administrator pursuant to time, and that this Agreement has been provided to the Collateral Custodian will provide Administrator (the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent Administrator, in connection with all each delivery of applicable Required Loan Documents hereunder to the Collateral Administrator, the Servicer shall provide to the Collateral Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Administrator) of the related Loan Asset Checklist which contains the Loan Asset information necessary with respect to the applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the Collateral Agent represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to credit each Collateral Obligation File to be on its face. If, at the Collection Account in accordance with the terms hereof. Promptly upon the receipt conclusion of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian Administrator shall send notice determine that the Review Criteria is not satisfied, the Collateral Administrator shall within three Business Days notify the Servicer of such receipt determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Administrator’s notification to the Collateral ManagerServicer of its review of the Review Criteria, the Agent Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and each Lender AgentCollateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that neither the Collateral Agent’s security interest therein under Custodian nor the UCC. Except upon compliance with the provisions of Section 18.5Collateral Administrator makes any representations as to, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File and shall be released from AmericasActive:18709990.5 responsible for, the possession existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral CustodianCustodian or the Collateral Administrator, as applicable.
(iii) The All original promissory notes actually delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties thereinbe kept ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Level “C” – Securities Vault, New York, NY 10022, Attention: ▇▇. Each Collateral Obligation File which comes into the possession of the Collateral Agent ▇▇▇▇▇ ▇▇▇▇▇, OSCF LENDING III SPV, LLC, telephone: (other than documents delivered electronically▇▇▇) shall be maintained in fire▇▇▇-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A ▇▇▇▇, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each All such documents delivered to the Collateral Obligation File Custodian must be sent by trackable courier service (e.g., UPS or Federal Express) All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) (x) On the Reporting Date of each month and (y) upon demand of the Administrative Agent (provided that prior to the occurrence of an Event of Default (that has not been waived), the Administrative Agent shall not make such demand more than four times per calendar year), the Collateral Custodian and the Agent. The Collateral Custodian Administrator shall keep identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Obligation Files clearly segregated from Administrator shall identify any other documents or instruments in its files.
(iv) With respect applicable Review Criteria that any Loan Asset fails to the documents comprising each Collateral Obligation Filesatisfy, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlArticle XII.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or nor the Collateral ManagerAdministrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerresponsibilities shall be read into this Agreement, the Agent, any Agent, the Collateral Manager, other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Agent shall be served Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by a third party with any type of levy, attachment, writ or court order with respect to any the other parties hereto that neither the Collateral Obligation File or a document included within a Custodian nor the Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File Administrator shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service exercise any discretion hereunder and shall promptly deliver have no investment or cause to be delivered to the other parties to this Agreement management responsibility.
(to the extent not prohibited by Applicable Lawvi) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the extent permitted by lawCollateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit L), continue as applicable, as requested in order to hold and maintain all allow the Administrative Agent or the Collateral Obligation Files Agent to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the BorrowerAdministrative Agent.
(vii) The parties acknowledge and agree that the Collateral Custodian is not expecting to receive a significant number of original Required Loan Documents. In the AmericasActive:18709990.5 event the Collateral Custodian receives an amount in excess of its expectation, as determined in its sole discretion, the Collateral Custodian may either appoint a sub-agent custodian, or require the Borrower to enter into a document custody agreement in form and substance reasonably acceptable to the Borrower directly with a separate custodian, in respect of such original Required Loan Documents.
(viii) The Administrative Agent may direct the Collateral Custodian in writing and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, or the Collateral Administrator, as applicable (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent and the Collateral Custodian or the Collateral Administrator, as applicable does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 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.
(viiiix) The Neither the Collateral Custodian nor the Collateral Administrator shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. The Neither the Collateral Custodian nor the Collateral Administrator shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless written notice thereof is received by it.
(x) With respect to any notices, reports, requests for waiver, consent requests or any other requests relating to corporate actions affecting any Bonds and Equity Securities (together, the “Permitted Non-Loan Corporate Actions”), the delivery of Default, Unmatured Collateral Manager Event of Default such shall be made solely via Citibank’s corporate action notification system or Collateral Manager Event of Default Event of Default unless such other reasonable notification method as implemented by the Collateral Custodian has received written notice from with notification to the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicableServicer. In order to receive such Permitted Non-Loan Corporate Actions, the absence of receipt of such noticeServicer may be required to register for an account with Citibank’s corporate action notification system. Neither the Collateral Custodian nor the Collateral Administrator shall have any obligation or liability with respect to any Permitted Non-Loan Corporate Actions.
(xi) The Borrower acknowledges 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 conclusively assume request including, but not limited to, its name, physical address, tax identification number and other information that there will help the Collateral Custodian to identify and verify its identity such as organizational AmericasActive:18709990.5 documents, certificate of good standing, license to do business, or other pertinent identifying information.
(xii) In connection with each Payment Date, the Collateral Administrator shall calculate, using the information contained in the Collateral Database and any other information normally maintained by the Collateral Custodian, and subject to the Collateral Administrator’s receipt from the Servicer of the information required to be provided to the Collateral Administrator, each item required to be included the Servicing Report pursuant to Section 6.08(b)(ii) and shall prepare and arrange for the delivery of such information to be included in the Servicing Report and shall deliver a draft of such Payment Date Report not later than the day that is no Event four (4) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of Defaulta Notice of Exclusive Control, Unmatured Event of Default, Unmatured the Collateral Manager Event of Default Agent and the Servicer) for the Servicer’s (or Collateral Manager Event of DefaultAgent’s, in each case unless it has actual knowledge of as applicable) review. The parties acknowledge and agree that the Servicer shall provide, and the Collateral Administrator shall have no duty or responsibility to determine, the underlying information (or perform the underlying calculations) provided to it. The parties further acknowledge that the Collateral Administrator shall not be responsible for determining the Interest with respect to any such occurrenceAdvance, which shall be solely provided by the Administrative Agent.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The From the Original Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Sections 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementand 3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which -148- contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A on the signature pages attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to BDCA and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable -149- to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Loan Asset Files delivered by the Collateral Manager shall deliver, on or prior Servicer and the Borrower pursuant to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.203.02(a), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementSection 3.02(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Section 3.04(a) in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within ten Business Days of its receipt of the Loan Asset File for any Loan Asset, the Loan Asset Schedule and a hard copy of the related Loan Asset Checklist, the Collateral Custodian shall review such Loan Asset File to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings identified on the related Loan Asset Checklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Loan Asset is included, and (D) the current balance, Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the Loan Asset Schedule (such items (A) through (D) collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of a Loan Asset File hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Loan Asset File being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Loan Asset File shall be limited to reviewing such Loan Asset File based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the current balance of the Loan Asset with respect to which it has received the Loan Asset File is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer and the Administrative Agent of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy, which the Servicer shall promptly provide to the Borrower upon receipt of such. The Borrower shall have five Business Days after notice or knowledge thereof to correct any noncompliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit I) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral ManagerCustodian's delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Loan Asset File which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Loan Asset Files, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent on behalf of the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Loan Asset Files or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation All Loan Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Loan Asset Files shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Loan Asset Files on its inventory system and will not commingle the physical Loan Asset Files with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to KREF and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every Month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Servicer and deliver any Loan Asset File to the Servicer or Administrative Agent (pursuant to a written request in the form of Exhibit I), as applicable, as requested in order to take any action that the Administrative Agent or the Servicer 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 or under any Transaction Document, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Servicer which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (GOLUB CAPITAL INVESTMENT Corp)
Duties. The From the Closing Date until its resignation pursuant to clause (n) below or its removal pursuant to clause (i) below, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i1) The Collateral CustodianCustodian shall at all times hold all Custody Documents Delivered (as defined in the Pledge and Security Agreement) in physical form at one of its of fices in the United States (for purposes hereof, as the duly appointed agent “Custodial Office”); provided that, for the avoidance of doubt, the only Custody Documents required to be held in physical custody by the Collateral Custodian under this Agreement are the Escrowed Assignment Agreement Documents. The Collateral Custodian may change the Custodial Of f ice at any time and f rom time to time upon notice to the Borrower, the Collateral Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Of f ice shall be an of f ice of the Secured Parties, for these purposes, acknowledges that Collateral Custodian located in the United States. All Custody Documents held by the Collateral Manager Custodian shall deliver, on or be available for inspection by the Administrative Agent upon prior to written request and during normal business hours of the applicable Funding Date (but Collateral Custodian. Any such inspection shall occur no more earlier than three (3) f ive Business Days after such Funding Dateinspection is requested and the costs of such inspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule if an Event of Collateral Obligations attached Default has occurred and is continuing no more than once a month. Notwithstanding anything to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any reviewcontrary herein, the Collateral Custodian shall send notice not be required to hold or accept custody of such receipt any Custody Document hereunder to the Collateral Manager, extent such Custody Document is of a type not approved for deposit into the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to custodial vault of the Collateral Custodian; provided that
(1) the Collateral Custodian notifies the Collateral Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such documents shall have been delivered by the Borrower to or otherwise made available to the Administrative Agent). For the avoidance of doubt, the Collateral Custodian is acting exclusively as the custodian shall not be required to review or provide any certifications in respect of the Secured Parties, and has no instructions Custody Documents provided to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. it.
(2) In so taking and retaining custody of the Collateral Obligation Filesany such Custody Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that (x) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on such Custody Documents or the instruments therein under or as to the UCC. Except upon compliance with the provisions adequacy or sufficiency of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of such Custody Documents; and (y) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii3) The All Custody Documents required to be held by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as Custodial Office and shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses files of the Collateral Custodian incurred as a result of such proceedings shall be borne by other than those, if any, relating to the BorrowerBorrower and its Af f iliates and Subsidiaries.
(vii4) The Agent may direct the Collateral Custodian in writing to take Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the 145 other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agentmanagement responsibility. The Collateral Custodian shall not be deemed to have knowledge assume any obligations or notice liabilities of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default Borrower or Collateral Manager Event hereunder or under any other Transaction Document.
(5) The Collateral Custodian shall have no obligation to review or verify whether the Borrower or the Collateral Manager on its behalf has obtained and delivered (or made available to the Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of Default Event of Default unless Collateral Obligations hereunder, and the Collateral Custodian has received written notice from shall have no obligation to maintain the Agent, Collateral Manager or Transaction Data Room on behalf of the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceBorrower.
Appears in 1 contract
Sources: Credit Agreement (New Mountain Guardian III BDC, L.L.C.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that shall take and retain custody of the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Asset Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation Asset listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestSchedule. The Collateral Custodian acknowledges that in connection with any Asset Borrowing or Reinvestment Request and the related Approval RequestNotice (if applicable), additional Collateral Obligation Asset Files (specified on an accompanying the applicable Collateral Asset Schedule of or supplement to the Collateral Obligations supplementAsset Schedule) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation Asset File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation Asset File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Asset Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Administrative Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5as provided herein, no Collateral Obligation Asset File or other document constituting a part of a Collateral Obligation Asset File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation Asset File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or located at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, MN 55108, Attention: Transfers/Redemptions – OLPG Lending SPV, LLC. Each Collateral Obligation Asset File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Asset Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case a Responsible Officer of the Borrower Servicer or the Collateral Manager, or a Responsible Officer, in the case of the Agent, Administrative Agent concerning the use, handling and disposition of the Collateral Obligation Asset Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Manager, Servicer or the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by lawLaw, continue to hold and maintain all the Collateral Obligation Asset Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation Asset File or a document included within such Collateral Obligation Asset File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
(ix) The Collateral Custodian shall prepare the Monthly Report in accordance with Section 12.04 and shall distribute funds in accordance with the Monthly Report delivered with respect to each month in which a Payment Date occurs in accordance with Section 2.13.
Appears in 1 contract
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that shall take and retain custody of the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Asset Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval RequestAsset. The Collateral Custodian acknowledges that in connection with any Asset Approval RequestReinvestment, additional Collateral Obligation Asset Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation Asset File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation Asset File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Asset Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Administrative Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5as provided herein, no Collateral Obligation Asset File or other document constituting a part of a Collateral Obligation Asset File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Asset Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation Asset File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation Asset File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Asset Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case a Responsible Officer of the Borrower Collateral Manager or the Collateral Manager, or a Responsible Officer, in the case of the Agent, Administrative Agent concerning the use, handling and disposition of the Collateral Obligation Asset Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral Manager, Manager or the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation Asset File or a document included within a Collateral Obligation Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by lawLaw, continue to hold and maintain all the Collateral Obligation Asset Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation Asset File or a document included within such Collateral Obligation Asset File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 5.01(f) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within ten (10) Business Days of its receipt of the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Custodian shall review such Required Loan Documents to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC financing statements and other filings identified on the related Loan Asset Checklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included and (D) the stated balance, Portfolio Asset number and Obligor name, as applicable, with respect to such Portfolio Asset is referenced on the Loan Asset Schedule (such items in clauses (A) through (D) above, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian a hard copy or an electronic copy of the related Loan Asset Checklist which contains the Portfolio Asset information with respect to the Required Loan Documents being delivered, Portfolio Asset number and without the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents for any Loan Asset shall be limited to the Review Criteria based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is not as is set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such receipt discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Portfolio Asset Servicer, the Calculation Agent and the Administrative Agent of such determination and provide the Portfolio Asset Servicer with a list of the non-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit E) by the Portfolio Asset Servicer and approved by the Majority Lenders within 10 Business Days of the Collateral ManagerCustodian’s delivery of such report, the Agent and each Lender AgentCollateral Custodian shall return any Required Loan Documents which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting and on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Loan Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The All Required Loan Documents physically delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Schedule III hereto, or at such other offices office as shall be specified to the Administrative Agent and the Portfolio Asset Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation File Custodian shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Obligation Files clearly segregated from Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other documents or instruments in its filesLoan Asset Files delivered to the Collateral Custodian with any other files of the Collateral Custodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Majority Lenders.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall controlBorrower and the Calculation Agent (in a form mutually agreeable to the Administrative Agent (at the direction of the Majority Lenders) and the Collateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not be required to take have any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Fourth Amendment and Joinder to Loan and Servicing Agreement (Carlyle Secured Lending, Inc.)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All Required Loan Documents in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ – ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: BNY Mellon/Branch Deposit Department, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising first Business Day following the Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy as of the Agent, the Agent’s written instructions shall controlsuch Reporting Date.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Apollo Debt Solutions BDC)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Administrative Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, taken suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, Loan Asset number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to the Review Criteria based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (substantially in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Required Loan Document which fails to satisfy a Review Criteria to the Collateral ManagerBorrower within two (2) Business Days of receiving any such release request. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The All Required Loan Documents delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A Section 12.02, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which other parties hereto that the Collateral Custodian shall give a direction consistent with such determinationnot be required to exercise any discretion hereunder and shall have no investment or management responsibility. Expenses The permissive rights of the Collateral Custodian incurred to do things enumerated in this Agreement shall not be construed as a result of such proceedings shall be borne by the Borrowerduty.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request substantially in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Custodian. The Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of Custodian’s receipt of such noticereports (including monthly distribution reports) and any publicly available information, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default shall not constitute actual or Collateral Manager Event of Default, in each case unless it has actual constructive knowledge or notice of any such occurrenceinformation contained therein or determinable from information contained therein.
Appears in 1 contract
Duties. The From the Closing Date until its resignation pursuant to Section 12.07, its removal pursuant to Section 12.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral CustodianCustodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take and retain custody of electronic copies of the items in the definition of Required Loan Documents, as (including any copies of original items described in clause (a) of such definition) and the duly appointed agent Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) . Within five Business Days after of its receipt of any Required Loan Documents, (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such Funding Date, except as set forth in Section 10.20items), the related Loan Tape and an electronic copy of the Loan Asset Checklist, the Collateral Obligation Files delivered Administrator shall review the items in the definition of Required Loan Documents to it for confirm that, on their face, (each Collateral Obligation item listed on in the Schedule of Collateral Obligations attached Loan Asset Checklist required to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time Administrator pursuant to time, and that this Agreement has been provided to the Collateral Custodian will provide Administrator (the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent Administrator, in connection with all each delivery of applicable Required Loan Documents hereunder to the Collateral Administrator, the Servicer shall provide to the Collateral Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Administrator) of the related Loan Asset Checklist which contains the Loan Asset information necessary with respect to the applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the Collateral Agent represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to credit each Collateral Obligation File to be on its face. If, at the Collection Account in accordance with the terms hereof. Promptly upon the receipt conclusion of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian Administrator shall send notice determine that the Review Criteria is not satisfied, the Collateral Administrator shall within three Business Days notify the Servicer of such receipt determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Administrator’s notification to the Collateral ManagerServicer of its review of the Review Criteria, the Agent Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and each Lender AgentCollateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that neither the Collateral Agent’s security interest therein under Custodian nor the UCC. Except upon compliance with the provisions of Section 18.5Collateral Administrator makes any representations as to, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File and shall be released from responsible for, the possession existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral CustodianCustodian or the Collateral Administrator, as applicable.
(iii) The All original promissory notes actually delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties thereinbe kept at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A ▇▇▇▇, Minnesota 55108, Attention: CLO Trust Services—OSCF LENDING V SPV, LLC, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Administrative Agent) days prior to such change. Each All such documents delivered to the Collateral Obligation File Custodian must be sent by trackable courier service (e.g., UPS or Federal Express) All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) (x) On the Reporting Date of each month and (y) upon demand of the Administrative Agent (provided that prior to the occurrence and continuance of an Event of Default (that has not been waived), the Administrative Agent shall not make such demand more than four times per calendar year), the Collateral Custodian and the Agent. The Collateral Custodian Administrator shall keep identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Obligation Files clearly segregated from Administrator shall identify any other documents or instruments in its files.
(iv) With respect applicable Review Criteria that any Loan Asset fails to the documents comprising each Collateral Obligation Filesatisfy, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlArticle XII.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or nor the Collateral ManagerAdministrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerresponsibilities shall be read into this Agreement, the Agent, any Agent, the Collateral Manager, other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Agent shall be served Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by a third party with any type of levy, attachment, writ or court order with respect to any the other parties hereto that neither the Collateral Obligation File or a document included within a Custodian nor the Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File Administrator shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service exercise any discretion hereunder and shall promptly deliver have no investment or cause to be delivered to the other parties to this Agreement management responsibility.
(to the extent not prohibited by Applicable Lawvi) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the extent permitted by lawCollateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit L), continue as applicable, as requested in order to hold and maintain all allow the Administrative Agent or the Collateral Obligation Files Agent to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Administrative Agent in writing, which shall give a direction consistent with such determination. Expenses of (provided that the Collateral Custodian incurred as a result shall provide notice of any such proceedings shall be borne by conflicting instructions to each of the BorrowerBorrower and the Servicer).
(vii) The parties acknowledge and agree that the Collateral Custodian is not expecting to receive a significant number of original Required Loan Documents. In the event the Collateral Custodian receives an amount in excess of its reasonable expectation, as determined in its sole discretion, the Collateral Custodian may either appoint a sub-agent custodian, or require the Borrower to enter into a document custody agreement in form and substance reasonably acceptable to the Borrower directly with a separate custodian, in respect of such original Required Loan Documents.
(viii) The Administrative Agent may direct the Collateral Custodian in writing and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, or the Collateral Administrator, as applicable (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent and the Collateral Custodian or the Collateral Administrator, as applicable does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 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.
(viiiix) The Neither the Collateral Custodian nor the Collateral Administrator shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. The Neither the Collateral Custodian nor the Collateral Administrator shall not be deemed to have actual or constructive knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received or Collateral Administrator receives written notice from thereof.
(x) [Reserved].
(xi) The Borrower acknowledges that in accordance with the Agent, Collateral Manager or Customer Identification Program (CIP) requirements under the Borrower referring to this Agreement, describing such event USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume reasonably request including, but not limited to, its name, physical address, tax identification number and other information that there will help the Collateral Custodian to identify and verify its identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(xii) In connection with each Payment Date, the Collateral Administrator shall calculate, using the information contained in the Collateral Database and any other information normally maintained by the Collateral Custodian, and subject to the Collateral Administrator’s receipt from the Servicer of the information required to be provided to the Collateral Administrator, each item required to be included the Servicing Report pursuant to Section 6.08(b)(ii) and shall prepare and arrange for the delivery of such information to be included in the Servicing Report and shall deliver a draft of such Payment Date Report not later than the day that is no Event four (4) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of Defaulta Notice of Exclusive Control, Unmatured Event of Default, Unmatured the Collateral Manager Event of Default Agent and the Servicer) for the Servicer’s (or Collateral Manager Event of DefaultAgent’s, in each case unless it has actual knowledge of as applicable) review. The parties acknowledge and agree that the Servicer shall provide, and the Collateral Administrator shall have no duty or responsibility to determine, the underlying information (or perform the underlying calculations) provided to it. The parties further acknowledge that the Collateral Administrator shall not be responsible for determining the Interest with respect to any such occurrenceAdvance, which shall be solely provided by the Administrative Agent.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other USActive 58353885.2 than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation -152- USActive 58353885.2 of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent and the Borrower, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Portfolio Asset Files and the Collateral Manager shall deliver, on or prior Required Portfolio Documents delivered by the Portfolio Asset Servicer and Borrower pursuant to the applicable Funding Date (but no more than three (3Section 5.01(g) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Promptly upon the Within five (5) Business Days of receipt of any Required Portfolio Documents, the Collateral Custodian shall review such Required Portfolio Documents to confirm that (A) the Outstanding Principal Balance and the Obligor name on the applicable Loan Agreement and any related promissory note matches that on the Portfolio Asset Schedule and the Portfolio Asset number on the applicable Loan Agreement matches that on the Portfolio Asset Schedule, as applicable, and to the extent such Loan Agreement and related promissory note have been delivered to the Collateral Custodian, (B) such Required Portfolio Documents have been executed (either an original or a copy, as indicated on the related Portfolio Asset Checklist), appear to relate to such Portfolio Asset and have no mutilated pages, (C) filed copies of the UCC financing statements and other filings identified on the related Portfolio Asset Checklist are included and (D) if listed on the related Portfolio Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included (the items to be reviewed pursuant to this sentence, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of a Portfolio Asset File hereunder to the Collateral Obligation Files Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian an electronic copy of the related Portfolio Asset Checklist which contains the Portfolio Asset information with respect to the Portfolio Asset File being delivered, identification number and without any the name of the Obligor with respect to such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Portfolio Asset File shall be limited to the Review Criteria and based on the information provided on the related Portfolio Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (A) the Outstanding Principal Balance of such receipt the Portfolio Asset with respect to which it has received the Portfolio Asset File does not match the Outstanding Principal Balance set forth on the Portfolio Asset Schedule, the Collateral Custodian shall execute and deliver to the Collateral ManagerPortfolio Asset Servicer, the Facility Servicer and the Administrative Agent a certification (the “Collateral Custodian Certification”) substantially in the form attached hereto as Exhibit M, including an attached exception report (the “Exception Report”). The Borrower shall have ten (10) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing by the Borrower or Portfolio Asset Servicer in accordance with Section 9.08 and each Lender Agentapproved by the Administrative Agent (acting at the written direction of the Majority Lenders), within ten (10) Business Days of the Collateral Custodian’s delivery of the Collateral Custodian Certification and the related Exception Report, the Collateral Custodian shall return any Portfolio Asset File which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Portfolio Asset File. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Portfolio Documents shall be limited to reviewing such Required Portfolio Documents based on the information provided on the Portfolio Asset Checklist.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation electronic copies of the Portfolio Asset Files, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Portfolio Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest Any electronic copies of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) Portfolio Asset Files shall be maintained in fire-resistant vaults or cabinets electronically stored at the office locations specified as the address of the Collateral Custodian specified in Annex A on Schedule IV or at such other offices locations as shall be specified to the Agent Administrative Agent, Facility Servicer and the Borrower by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File Any electronic copies of the Portfolio Asset Files shall be marked electronically filed together with an appropriate identifying label identifier and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the electronic copies of the Portfolio Asset Files and will not commingle such electronic copies of the Portfolio Asset Files with any other files of the Collateral Obligation Files clearly segregated from Custodian; provided the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent.
(iv) With respect On each Reporting Date following the first delivery of Required Portfolio Documents to the documents comprising each Collateral Obligation FileCustodian, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall control.
Borrower and the Lenders (v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered form mutually agreeable to the other parties to this Agreement Administrative Agent (to at the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the written direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of Majority Lenders) and the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity identifying each Portfolio Asset for which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent holds a Portfolio Asset File and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within applicable Review Criteria that any Portfolio Asset File fails to satisfy. The Borrower shall have ten (10) Business Days of its receipt of such request, then the Agent shall be deemed after notice or knowledge thereof to have declined to consent to the relevant actioncorrect any non-compliance with any Review Criteria.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Duties. The Until its removal pursuant to Section 5(e), the Collateral Custodian shall perform, perform on behalf of the Secured PartiesAdministrative Agent and the Lenders, the following duties and obligations:
(iA) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files Required Asset Documents delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with by any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Pledgor in accordance with the terms hereofand conditions of this Pledge Agreement, all for the benefit of the Lenders and subject to the Lien thereon in favor of the Administrative Agent as agent for the Lenders. Promptly upon the Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review such Required Asset Documents to confirm that (A) such Required Asset Documents, to the extent indicated on the Asset Checklist, have been executed and, on their face, have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) are contained in the Asset File and have a file stamp set forth thereon, (C) a certificate of insurance (as set forth on the Asset Checklist) is contained in the Asset File, and (D) the related Original Principal Balance, Asset identification number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the Asset Checklist and without any the related Asset List that otherwise contains the Asset identification number, the Original Principal Balance and the name of the Obligor with respect to each related Asset. At the conclusion of such review, the Collateral Custodian shall send notice of deliver a receipt in the form attached hereto as Exhibit 5(b). The Servicer and the related Pledgor shall use commercially reasonable efforts to correct any non-compliance with a Review Criteria identified on such receipt to the Collateral Manager, the Agent and receipt. Two times each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodiancalendar month, the Collateral Custodian is acting exclusively as shall deliver to the custodian Servicer and the Administrative Agent an exception report identifying, with particularity, each Asset and each of the Secured Partiesapplicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and has no instructions approved by the Administrative Agent or as otherwise directed by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such exception report, the Collateral Custodian shall return any Asset which fails to hold any Collateral Obligation File for satisfy a Review Criteria to the benefit of any Person other applicable Person. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(B) In so taking and retaining custody of the Collateral Obligation FilesRequired Asset Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Administrative Agent and the Lenders; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Asset Documents or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iiiC) The All Required Asset Documents kept by the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A on Schedule 5(b) attached hereto, or at such other offices office as shall be specified to the Administrative Agent and by the Collateral Manager Custodian in a written notice delivered at least thirty forty-five (3045) days prior to such change. Each Collateral Obligation File All Required Asset Documents shall be marked with an appropriate identifying label electronically tracked and maintained in such a manner so as to permit retrieval and access by access. All notes and Loan Registers included in the Pledged Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files be clearly electronically or physically segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, maintained by the Collateral Custodian shall (i) act exclusively as Collateral Custodian for Custodian. At the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit reasonable request of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Initial Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent Days) deliver to the relevant actionAdministrative Agent copies of all Asset Files that have not been segregated.
(viiiD) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeperforming its duties, the Collateral Custodian may conclusively assume shall use the same degree of care and attention as it employs with respect to similar collateral that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceholds as collateral custodian.
Appears in 1 contract
Sources: Pledge Agreement (Capitalsource Inc)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager Borrower shall cause the Servicer to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian Agent will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Sections 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementand 3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A on the signature pages attached hereto, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to BDCA and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (xA) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (yB) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change; provided that, any Collateral Obligation File that comes into the possession of the Collateral Agent in the form of a physical promissory note shall be maintained in fire-resistant vaults. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability or expense hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations; provided, however, that any such Collateral Custodian duties with respect to Collateral to be held in an electronic form shall instead be performed by the Collateral Administrator:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Duties. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Senior Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Servicer shall include the following:
(i) supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall performand the Backup Servicer) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, on behalf the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;
(vi) notifying the Administrative Agent, the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties, in the following duties and obligations:Collateral Portfolio;
(iix) The maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral CustodianPortfolio; provided that, so long as the duly appointed agent Servicer is in possession of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)any Required Loan Documents, the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that Servicer will hold such Required Loan Documents in connection with any Asset Approval Request, additional Collateral Obligation Files a fireproof safe or fireproof file cabinet;
(specified on an accompanying Schedule of Collateral Obligations supplementx) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for directing the Collateral Agent to credit each make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04;
(xi) directing the sale or substitution of Collateral Obligation File Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account in accordance established and maintained with the terms hereof. Promptly upon Collateral Agent;
(xiv) delivering the receipt of any such delivery of Collateral Obligation Loan Asset Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Manager, the Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered Loan Asset Schedule to the Collateral Custodian, the Collateral Custodian is acting exclusively ; and
(xv) complying with such other duties and responsibilities as the custodian may be required of the Secured Parties, Servicer by this Agreement. It is acknowledged and has no instructions to hold any Collateral Obligation File for the benefit of any agreed that in circumstances in which a Person other than the Secured Parties Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and undertakes to perform agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such duties and only such duties as are specifically set forth performance would conflict with or result in this Agreement. In so taking and retaining custody a breach of any of the Collateral Obligation Filesexpress terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance (b) have determined that there is no other commercially reasonable performance that it could render consistent with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession express terms of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody Loan Agreements which would result in all or a portion of all Collateral Obligation Files in its possession in secure facilities the servicing duties being performed in accordance with customary standards for this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such custody and shall reflect in its records the interest non-performance including performing as much of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at servicing duties as possible and performing such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents commercially reasonable or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance similar duties consistent with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlLoan Agreements.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non‑complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non‑compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All Required Loan Documents in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ – 5th floor, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: BNY Mellon/Branch Deposit Department, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files in electronic form delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all tangible Collateral Obligation Files in its possession possession, if any, in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at 1▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 55018, Attention: Transfer Agent Team – GDLC Funding II LLC or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it in physical form shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; providedprovided that, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable non-appealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp)
Duties. The From the Closing Date until Restatement Date, the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made as listed on the Loan Asset Checklist, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note, assignment agreement or participation interest documentation, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Manager, Custodian shall notify the Agent and each Lender Agentthe Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit M) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, that the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall provide a written report to the Agent (iwho will provide each Lender with a copy promptly upon receipt thereof) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of Servicer (in a form mutually agreeable to the Agent, Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Obligation File Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a document included within such Collateral Obligation File written request in the form of Exhibit M), as directed applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Agent in writingBorrower hereunder, which shall give a direction consistent or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with such determinationrespect to Article VII. Expenses of In the event the Collateral Custodian incurred as a result of such proceedings shall be borne receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the BorrowerAgent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(viiii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from thereof is received by the Agent, Collateral Manager or Custodian.
(iv) The parties acknowledge that in accordance with the Borrower referring to this Agreement, describing such event Customer Identification Program (CIP) requirements under the USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that there is no Event will help the Collateral Custodian to identify and verify the Borrower’s identity (in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of Defaultgood standing, Unmatured Event of Defaultlicense to do business, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceother pertinent identifying information.
Appears in 1 contract
Duties. The From the Closing Date until its resignation pursuant to Section 12.07, its removal pursuant to Section 12.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral CustodianCustodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take an retain custody of electronic copies of the items in the definition of Required Loan Documents, as (including any copies of original items described in clause (a) of such definition) and the duly appointed agent Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) . Within five Business Days after of its receipt of any Required Loan Documents, (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such Funding Date, except as set forth in Section 10.20items), the related Loan Tape and an electronic copy of the Loan Asset Checklist, the Collateral Obligation Files delivered Administrator shall review the items in the definition of Required Loan Documents to it for confirm that, on their face, (each Collateral Obligation item listed on in the Schedule of Collateral Obligations attached Loan Asset Checklist required to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time Administrator pursuant to time, and that this Agreement has been provided to the Collateral Custodian will provide Administrator (the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent Administrator, in connection with all each delivery of applicable Required Loan Documents hereunder to the Collateral Administrator, the Servicer shall provide to the Collateral Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Administrator) of the related Loan Asset Checklist which contains the Loan Asset information necessary with respect to the applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the Collateral Agent represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to credit each Collateral Obligation File to be on its face. If, at the Collection Account in accordance with the terms hereof. Promptly upon the receipt conclusion of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian Administrator shall send notice determine that the Review Criteria is not satisfied, the Collateral Administrator shall within three Business Days notify the Servicer of such receipt determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Administrator’s notification to the Collateral ManagerServicer of its review of the Review Criteria, the Agent Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and each Lender AgentCollateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that neither the Collateral Agent’s security interest therein under Custodian nor the UCC. Except upon compliance with the provisions of Section 18.5Collateral Administrator makes any representations as to, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File and shall be released from responsible for, the possession existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral CustodianCustodian or the Collateral Administrator, as applicable.
(iii) The All original promissory notes actually delivered to the Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties thereinbe kept ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Level “C” – Securities Vault, New York, NY 10022, Attention: ▇▇. Each Collateral Obligation File which comes into the possession of the Collateral Agent ▇▇▇▇▇ ▇▇▇▇▇, OSCF LENDING III SPV, LLC, telephone: (other than documents delivered electronically▇▇▇) shall be maintained in fire▇▇▇-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A ▇▇▇▇, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.such
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Borrower shall cause the Investment Manager shall to deliver, on or prior to the applicable Funding Date (but no more than three five (35) Business Days after such Funding Date, except as set forth in Section 10.2010.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral Investment Manager, the Facility Agent and each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Agent and the Collateral Manager in a written notice at least thirty (30) days prior to such changeCustodian. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Investment Manager, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Facility Agent, any Agent, the Collateral Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Borrower, each Agent and each Lender the Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent Custodian (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A or at the office located at Deutsche Bank NationalComputershare Trust Company, c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.A., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, Minnesota 55018, or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent or, in accordance with Section 18.5, the Servicer; provided that in the event of a conflict between the written instructions of the Facility Agent and the written instructions of the Servicer, the Facility Agent’s written instructions shall control; provided, further, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian Custodian, any Agent or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All Required Loan Documents in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ – 5th floor, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: BNY Mellon/Branch Deposit Department, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Sections 3.02(a) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementand 3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any such delivery of Collateral Obligation Files Required Loan Documents and without any reviewthe related Loan Asset Checklist, the Collateral Custodian shall send notice of review the Required Loan Documents to confirm that (A) the Obligor name matches the Loan Asset Checklist, (B) such receipt Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist has been provided to the Collateral ManagerCustodian (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the loan balance listed on the related Loan Tape (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian is acting exclusively as the custodian unable to confirm clauses (A) or (D) of the Secured PartiesReview Criteria, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any other Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer and the Administrative Agent of such determination and provide the Servicer and the Administrative Agent with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period and the Administrative Agent has provided the Servicer with written confirmation of such non-compliance, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no instructions to hold any Collateral Obligation File for longer be included in the benefit calculation of any Person other Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian locations specified in Annex A Section 5.06(c) or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Administrative Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Solar and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), commencing in March 2015, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (iin a form mutually agreeable to the Administrative Agent and the Collateral Custodian) act exclusively as Collateral Custodian identifying each Loan Asset for which it holds Required Loan Documents and the Secured Parties, (ii) hold all documents constituting applicable Review Criteria that any Loan Asset fails to satisfy. The Servicer shall have 20 Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such Collateral Obligation File received by it for non-compliance has not been cured within such time period and the exclusive use and benefit of Administrative Agent has provided the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or Servicer with written instructions furnished by the Agent; providedconfirmation of such non-compliance, that such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the event calculation of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlany Borrowing Base hereunder until such deficiency is cured.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Consent and Omnibus Amendment (Solar Senior Capital Ltd.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files delivered to it by, or on behalf of, the Borrower for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, the Agent Borrower and each Lender the Administrative Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian at the address of the Collateral Custodian specified in Annex A or at such other offices as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice at least thirty (30) 30 days prior to such change. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Administrative Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Administrative Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Administrative Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writingAdministrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Business Development Corp of America)
Duties. The From the Closing Date until its removal pursuant to Section 13.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (i) the original balance of such receipt the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Manager, Custodian shall notify the Agent and each Lender Agentthe Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) All Required Loan Documents shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office locations specified on the address of the Collateral Custodian specified in Annex A on the signature pages attached hereto, or at such other offices office as shall be specified to the Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Agent and the Borrower.
(iv) With respect to On the documents comprising each Collateral Obligation File12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtperforming its duties, the Collateral Custodian shall dispose use the same degree of such care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Obligation File Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a document included within such Collateral Obligation File written request in the form of Exhibit N), as directed applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Agent in writingBorrower hereunder, which shall give a direction consistent or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with such determinationrespect to Article VII. Expenses of In the event the Collateral Custodian incurred as a result of such proceedings shall be borne receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the BorrowerAgent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(viiii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral CustodianCustodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take and retain custody of electronic copies of the items in the definition of Required Loan Documents (including any copies of original items described in clause (a) of such definition) and the Loan Asset Checklist, as in each case delivered by the duly appointed agent Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date . Within five (but no more than three (35) Business Days after of its receipt of any Required Loan Documents (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such Funding Date, except as set forth in Section 10.20items), the related Loan Asset Schedule and an electronic copy of the Loan Asset Checklist, the Collateral Obligation Files delivered Administrator shall review the items in the definition of Required Loan Documents to it for confirm that, on their face, (each Collateral Obligation item listed on in the Schedule of Collateral Obligations attached Loan Asset Checklist required to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time Administrator pursuant to time, and that this Agreement has been provided to the Collateral Custodian will provide Administrator (the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent Administrator, in connection with all each delivery of applicable Required Loan Documents hereunder to the Collateral Administrator, the Servicer shall provide to the Collateral Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Administrator) of the related Loan Asset Checklist which contains the Loan Asset information necessary with respect to the applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the Collateral Agent represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to credit each Collateral Obligation File to be on its face. If, at the Collection Account in accordance with the terms hereof. Promptly upon the receipt conclusion of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian Administrator shall send notice determine that the Review Criteria is not satisfied, the Collateral Administrator shall within one (1) Business Day notify the Servicer of such receipt determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Administrator’s notification to the Collateral ManagerServicer of its review of the Review Criteria, the Agent Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and each Lender AgentCollateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that neither the Collateral Agent’s security interest therein under Custodian nor the UCC. Except upon compliance with the provisions of Section 18.5Collateral Administrator makes any representations as to, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File and shall be released from responsible for, the possession existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral CustodianCustodian or the Collateral Administrator, as applicable.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest clause (a) of the Secured Parties therein. Each Collateral Obligation File which comes into the possession definition of the Collateral Agent (other than documents delivered electronically) Required Loan Documents in original form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Level “C”—Securities Vault, New York, NY 10022, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ (212-559-1207), OSCF LENDING II SPV, LLC, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each month, the Collateral Custodian and the Agent. The Collateral Custodian Administrator shall keep identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Obligation Files clearly segregated from Administrator shall identify any other documents or instruments in its files.
(iv) With respect applicable Review Criteria that any Loan Asset fails to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall controlsatisfy.
(v) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or nor the Collateral ManagerAdministrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerresponsibilities shall be read into this Agreement, the Agent, any Agent, the Collateral Manager, other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Agent shall be served Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by a third party with any type of levy, attachment, writ or court order with respect to any the other parties hereto that neither the Collateral Obligation File or a document included within a Custodian nor the Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File Administrator shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service exercise any discretion hereunder and shall promptly deliver have no investment or cause to be delivered to the other parties to this Agreement management responsibility.
(to the extent not prohibited by Applicable Lawi) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the extent permitted by lawCollateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), continue as applicable, as requested in order to hold and maintain all allow the Administrative Agent or the Collateral Obligation Files Agent to take any action that are the subject Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of such proceedings pending a finalthem to exercise or enforce any of their respective rights hereunder, nonappealable order of a court of competent jurisdiction permitting including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or directing disposition thereof. Upon final determination of such courtthe Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed rely on and follow the instructions given by the Agent in writing, which shall give a direction consistent with such determination. Expenses of Administrative Agent.
(ii) The parties acknowledge and agree that the Collateral Custodian incurred is not expecting to receive a significant number of original Required Loan Documents. In the event the Collateral Custodian receives an amount in excess of its expectation, as determined in its sole discretion, the Collateral Custodian may either appoint a result sub-agent custodian, or require the Borrower to enter into a document custody agreement in form and substance reasonably acceptable to the Borrower directly with a separate custodian, in respect of such proceedings shall be borne by the Borroweroriginal Required Loan Documents.
(viiiii) The Administrative Agent may direct the Collateral Custodian in writing and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that neither the Collateral Custodian nor the Collateral Administrator shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, or the Collateral Administrator, as applicable (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent and the Collateral Custodian or the Collateral Administrator, as applicable does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiv) The Neither the Collateral Custodian nor the Collateral Administrator shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. The Neither the Collateral Custodian nor the Collateral Administrator shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from thereof is received by it.
(v) The Borrower acknowledges that in accordance with the Agent, Collateral Manager or Customer Identification Program (CIP) requirements under the Borrower referring to this Agreement, describing such event USA PATRIOT Act and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such noticeits implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may conclusively assume request including, but not limited to, its name, physical address, tax identification number and other information that there is no Event will help the Collateral Custodian to identify and verify its identity such as organizational documents, certificate of Defaultgood standing, Unmatured Event of Defaultlicense to do business, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceother pertinent identifying information.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. The From the Closing Date until its removal pursuant to Section 12.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.03(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any such delivery of Required Loan Documents, the related Collateral Obligation Files Tape and without any reviewthe Document Checklist, the Collateral Custodian shall send notice review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Document Checklist) and have no mutilated pages (in the case of such receipt electronic copies, “mutilated” shall mean that the pages are illegible) (B) UCC and other filings required under the applicable Underlying Instruments have been provided as listed on the Document Checklist, (C) if listed on the Document Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Collateral ManagerObligation number and Obligor name, as applicable, with respect to such Collateral Obligation is referenced on the related Collateral Obligation Tape (such items (A) through (D) collectively, the Agent and “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each Lender Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered delivery of Required Loan Documents hereunder to the Collateral Custodian, the Collateral Manager shall provide to the Collateral Custodian is acting exclusively as the custodian a copy (which may be an electronic copy) of the Secured Partiesrelated Document Checklist which contains the Collateral Obligation information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Collateral Obligation. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Document Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the original balance of the Collateral Obligation with respect to which it has no instructions received Required Loan Documents is less than as set forth on the Collateral Obligation Tape, the Collateral Custodian shall notify the Administrative Agent and the Collateral Manager of such discrepancy within one (1) Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager of such determination and provide the Collateral Manager with a list of the non‑complying Collateral Obligations and the applicable Review Criteria that they fail to hold satisfy. The Collateral Manager shall have five (5) Business Days after notice or knowledge thereof to correct any non‑compliance with any Review Criteria. In addition, if directed in writing (in the form of Exhibit M, which shall include an incumbency certificate for each authorized signer) by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Collateral Obligation File for which fails to satisfy a Review Criteria to the benefit of any Person other Borrower. Other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreementforegoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. ‑200‑
(ii) In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5Required Loan Documents or the instruments therein; and provided further that, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All Required Loan Documents required to be kept in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office of the Collateral Custodian specified in Annex A located at Florence, South Carolina, or at such other offices office as shall be specified to the Administrative Agent and the Collateral Manager by the Collateral Custodian in a written notice delivered at least thirty 30 days (30or such shorter notice period as consented to by the Administrative Agent) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from Custodian other than those, if any, relating to the Borrower and its Affiliates and subsidiaries; provided that the Collateral Custodian shall segregate any other documents or instruments in its filescommingled files upon written request of the Administrative Agent and the Borrower.
(iv) With The Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M, which shall include an incumbency certificate for each authorized signer), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the documents comprising each event the Collateral Obligation FileCustodian receives instructions from the Collateral Agent, the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for rely on and follow the Secured Parties, instructions given by the Administrative Agent.
(ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Agent, the Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Administrative Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect is hereby authorized to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With with respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder. With respect to such incidental actions, the Collateral Custodian shall not be required to take make any independent determinations as to the taking of any such incidental action hereunder, but shall be required only to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon ‑201‑ the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Loan and Servicing Agreement (MSD Investment Corp.)
Duties. The From the Closing Date until its removal pursuant to Section 11.05, the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain custody of the Secured Parties, for these purposes, acknowledges that Required Loan Documents delivered by the Collateral Manager shall deliver, on or prior Borrower pursuant to the applicable Funding Date (but no more than three (3Section 3.02(a) Business Days after such Funding Date, except as set forth in and Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement3.04(b) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account hereof in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Secured Parties. Promptly upon the Within five (5) Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Asset Checklist) and have no mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the "Review Criteria"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Obligation Files Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such receipt discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Collateral ManagerBorrower. Other than the foregoing, the Agent and each Lender AgentCollateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesRequired Loan Documents, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Secured Parties; provided that the Collateral Agent’s security interest therein under Custodian makes no representations as to the UCC. Except upon compliance with existence, perfection or priority of any Lien on the provisions of Section 18.5, no Collateral Obligation File Required Loan Documents or other document constituting a part of a Collateral Obligation File shall be released from the possession of instruments therein; and provided further that the Collateral Custodian's duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files All Required Loan Documents in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) physical form shall be maintained kept in fire-fire resistant vaults vaults, rooms or cabinets at the office address of the Collateral Custodian specified in Annex A located at The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ – ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: BNY Mellon/Branch Deposit Department, or at such other offices office as shall be specified to the Administrative Agent and the Servicer by the Collateral Manager Custodian in a written notice delivered at least thirty (30) days prior to such change. Each Collateral Obligation File All Required Loan Documents shall be marked placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Obligation Files clearly segregated from any Custodian other documents or instruments in than those, if any, relating to the Transferor and its filesAffiliates and subsidiaries.
(iv) With respect to On the documents comprising Reporting Date of each Collateral Obligation Filemonth, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement Administrative Agent and the written instructions of Servicer (in a form mutually agreeable to the Agent, Administrative Agent and the Agent’s written instructions shall controlCollateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officer, Notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such courtTransaction Documents, the Collateral Custodian shall dispose not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of such Collateral Obligation File or a document included within such Collateral Obligation File as directed the foregoing, it is hereby expressly agreed and stipulated by the Agent in writing, which shall give a direction consistent with such determination. Expenses of other parties hereto that the Collateral Custodian incurred as a result of such proceedings shall not be borne by the Borrowerrequired to exercise any discretion hereunder and shall have no investment or management responsibility.
(viii) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(viiiiii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, Unmatured Event unless a Responsible Officer of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received knowledge of such matter or written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice thereof is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, received by the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrenceCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund)
Duties. The Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), take and retain custody of the Collateral Obligation Files in electronic form delivered to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms hereof. Promptly upon the receipt of any such delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall send notice of such receipt to the Collateral ManagerServicer, each Loan Party and the Agent and each Lender Facility Agent.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting shall act exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation Files, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of as permitted by Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all tangible Collateral Obligation Files in its possession possession, if any, in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be maintained in fire-resistant vaults or cabinets at the office of the Collateral Custodian specified in Annex A A, at the office located at c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other offices as shall be specified to the Facility Agent and the Collateral Manager Servicer in a written notice at least thirty (30) days prior to such change. Each Collateral Obligation File delivered to it shall be marked with an appropriate identifying label and maintained in such manner so as to permit retrieval and access by the Collateral Custodian and the Facility Agent. The Collateral Custodian shall keep the Collateral Obligation Files clearly segregated from any other documents or instruments in its files.
(iv) With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; providedprovided that, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) The Collateral Custodian shall accept only written instructions of an Executive a Responsible Officer, in the case of the Borrower or the Collateral ManagerServicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrowerany Loan Party, the Agent, any Facility Agent, the Collateral ManagerServicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable non-appealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the Agent in writingFacility Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to have declined to consent to the relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge or notice of the occurrence of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Unmatured Collateral Manager Event of Servicer Default or Collateral Manager Event Unmatured Servicer Default, unless a Responsible Officer of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrencematter or written notice thereof is received by the Collateral Custodian.
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Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 4, Inc.)
Duties. The Collateral Custodian shall perform, on behalf of the Secured PartiesAdministrative Agent, the following duties and obligations:
(i) The Collateral Custodian, as the duly appointed agent Custodian shall take and retain electronic custody of the Secured Parties, for these purposes, acknowledges that Loan Asset Files and the Collateral Manager shall deliver, on or prior to Required Loan Documents delivered by the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20)Portfolio Asset Servicer, the Collateral Obligation Files delivered Borrower and any Subsidiary Guarantor pursuant to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplementSection 3.04(a) may be delivered to the Collateral Custodian from time to time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account Section 5.01(f) in accordance with the terms hereofand conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties and the Borrower. Promptly Within ten Business Days (if the Collateral Custodian receives no more than 20 Loan Asset Files during such ten Business Day period) or within a reasonable timeframe as is mutually agreed upon between the Collateral Custodian, the Borrower and the Portfolio Asset Servicer (if the Collateral Custodian receives more than 20 Loan Asset Files during such period) of its receipt of the Loan Asset File for any Loan Asset and the Loan Asset Schedule therefor, the Collateral Custodian shall review such Loan Asset File to confirm that (A) the outstanding principal balance and the Obligor name on the applicable Loan Agreement and any related promissory note matches that on the Loan Asset Schedule therefor, (B) such Required Loan Documents, other than UCC financing statements, have been executed (either an original or a copy, as indicated on the related Loan Asset Checklist), appear to relate to such Loan Asset and have no mutilated pages, (C) filed copies of the UCC financing statements and other filings identified on the related Loan Asset Checklist are included and (D) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Loan Asset is included (such items in clauses (A) through (D) above, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of a Loan Asset File hereunder to the Collateral Obligation Files Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian an electronic copy of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Loan Asset File being delivered, identification number and without any the name of the Obligor with respect to such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Loan Asset File shall be limited to reviewing such Loan Asset File pursuant to the Review Criteria based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall send notice determine that (1) the outstanding principal balance of the Loan Asset with respect to which it has received the Loan Asset File does not match the outstanding principal balance set forth on the Loan Asset Schedule therefor, the Collateral Custodian shall notify the Administrative Agent, the Borrower and the Facility Servicer of such discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Facility Servicer, the Administrative Agent and the Borrower of such determination and provide the Administrative Agent, the Facility Servicer and the Borrower with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Borrower shall have five Business Days after receipt of such list from the Collateral Custodian (or, to the extent necessary to so correct such non-compliance, receipt of the applicable Loan Asset File from the Collateral ManagerCustodian) to (on behalf of itself or any Subsidiary Guarantor) correct any non-compliance with any Review Criteria described on such list and the Borrower shall use commercially reasonable efforts to correct (on behalf of itself or any Subsidiary Guarantor) any such non-compliance within such five Business Day period. In addition, if requested in writing by the Administrative Agent, the Agent and each Lender AgentFacility Servicer or the Borrower in accordance with Section 9.08(a), within ten Business Days of the Collateral Custodian’s receipt of such request, the Collateral Custodian shall return to the Borrower or a Subsidiary Guarantor, as applicable, any Loan Asset File which fails to satisfy a Review Criteria for purposes of correcting such non-compliance. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Loan Asset File.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Collateral Custodian, the Collateral Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Collateral Obligation FilesLoan Asset Files as provided hereby, the Collateral Custodian shall be deemed to be acting for as the purpose agent of perfecting the Borrower, each Subsidiary Guarantor and the Administrative Agent on behalf of the Secured Parties; provided that (A) the Collateral Agent’s security interest Custodian makes no representations as to the existence, perfection or priority of any Lien on the Loan Asset Files or the instruments therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of and (B) the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest All electronic copies of the Secured Parties therein. Each Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) Loan Asset Files shall be maintained in fire-resistant vaults or cabinets electronically stored at the office locations specified as the address of the Collateral Custodian specified in Annex A Section 11.02, or at such other offices office as shall be specified to the Agent Administrative Agent, the Facility Servicer and the Borrower by the Collateral Manager Custodian in a written notice delivered at least thirty (30) 30 days prior to such change. Each Collateral Obligation File Any electronic copies of the Loan Asset Files shall be marked electronically filed together with an appropriate identifying label identifier and maintained in such a manner so as to permit retrieval and access by the Collateral Custodian and the Agentaccess. The Collateral Custodian shall keep segregate the Loan Asset Files on its inventory system. The Collateral Obligation Files clearly segregated from Custodian shall promptly report to the Administrative Agent, the Facility Servicer and the Borrower any other documents or instruments in failure on its filespart to so hold any portion of Loan Asset File and maintain its accounts, records and computer systems as hereby provided and promptly take appropriate action to remedy such failure.
(iv) With respect On the 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day) following the first delivery of Required Loan Documents to the documents comprising each Collateral Obligation FileCustodian, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for provide a written report to the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the Agent’s written instructions shall controlBorrower, the Lenders and the Facility Servicer (in a form mutually agreeable to the Administrative Agent (at the direction of the Initial Lender), the Borrower and the Collateral Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to satisfy.
(v) The Collateral Custodian shall accept only written instructions of an Executive Officerhave no duties or obligations other than those specifically set forth herein or as may subsequently be agreed to in writing by the parties hereto. Accordingly, notwithstanding any provision to the contrary elsewhere in the case of the Borrower or the Collateral Manager, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In the event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunderTransaction Documents, the Collateral Custodian shall not have (or be required deemed to take have) any such incidental action hereunderfiduciary relationship with any party hereto or any Secured Party in its capacity as such, but and no implied covenants, functions, obligations or responsibilities shall be required to act read into this Agreement, the other Transaction Documents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon otherwise exist against the direction Collateral Custodian. Without limiting the generality of the Agent; provided foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any action discretion hereunder at the request of the Agent, any Secured Parties and shall have no investment or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant actionmanagement responsibility.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
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