Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager") satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or resignation of the Collateral Manager (the "Manager Termination Date"), by written notice to the Issuer and the Trustee, the Holders of a Majority of the Subordinated Notes (Collateral Manager Notes will not be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning Collateral Manager, the Trustee or any Holder of Notes may petition a court of competent jurisdiction for the appointment of a Successor Manager that satisfies the Successor Criteria. A Successor Manager will satisfy the "Successor Criteria" if: (i) that Successor Manager has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager under this Agreement; (ii) that Successor Manager is legally qualified and has the capacity to act as Collateral Manager and has agreed in writing to assume all of the responsibilities, duties and obligations of the Collateral Manager under this Agreement and the Indenture; (iii) its appointment would not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the Investment Company Act; and (iv) the Rating Agency has been notified of such Successor Manager. For the avoidance of doubt, Collateral Manager Notes will be disregarded and have no voting rights with respect to any vote in respect of any of the following actions: (i) the removal of the Collateral Manager as a result of Cause and (ii) the waiver of any event constituting Cause, and such Notes will be deemed not to be Outstanding in connection with any such vote. For any such action, if the Notes of the Controlling Class or the Subordinated Notes consist entirely of Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of Collateral Manager Notes, disregarding any Collateral Manager Notes. No compensation payable to a successor Collateral Manager from payments on the Collateral will be greater than that permitted to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified in this Agreement, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, will automatically and without action by any Person pass to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer and the successor will take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such succession.
Appears in 3 contracts
Samples: Collateral Management Agreement (Monroe Capital Income Plus Corp), Collateral Management Agreement (Monroe Capital Income Plus Corp), Collateral Management Agreement (Monroe Capital Income Plus Corp)
Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager") satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the Any removal or resignation of the Collateral Manager (the "Manager Termination Date"), by written notice to the Issuer and the Trustee, the Holders of a Majority of the Subordinated Notes (Collateral Manager Notes while any Advances are outstanding will not be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning Collateral Manager, the Trustee or any Holder of Notes may petition a court of competent jurisdiction for the appointment of a Successor Manager that satisfies the Successor Criteria. A Successor Manager will satisfy the "Successor Criteria" if: effective only upon (i) the appointment by the Issuer of a successor Collateral Manager that Successor Manager is an established institution (A) that has demonstrated an ability to perform professionally and competently perform duties similar to those imposed upon required of the Collateral Manager under this Agreement; hereunder, (iiB) that Successor Manager is legally qualified and has the capacity to act as successor to the Collateral Manager and has agreed under this Agreement in writing to assume the assumption of all of the responsibilities, duties and obligations of the Collateral Manager under hereunder and (C) that has been approved by the Required Investors and (ii) written acceptance of appointment by such successor Collateral Manager having been delivered to the Issuer, the Trustee and the Investor Agent (upon satisfaction of such conditions, an “Approved Replacement”). Following the resignation or removal of the Collateral Manager, the Issuer shall use all commercially reasonable efforts to appoint a successor Collateral Manager, and the Issuer, the Trustee, the Investor Agent and the resigning or removed Collateral Manager shall take such action, consistent with this Agreement and the Indenture; (iii) its appointment would terms of the Note Purchase Agreement applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. In the event that the Collateral Manager has been terminated or has resigned and the Issuer shall have not cause appointed a successor on or result prior to the date that is 60 days following the date of the termination or resignation notice delivered in accordance with this Agreement, the Issuer or the resigning or removed collateral manager may petition any court of competent jurisdiction in the Issuer becomingUnited States of America for the appointment of a successor collateral manager (which meets the conditions set forth in the immediately preceding paragraph other than clause (i)(C)), or which appointment shall not require the pool of Assets consent of, nor be subject to be registered asthe disapproval of, an investment company under the Investment Company Act; and (iv) Issuer or any Investor. On the Rating Agency has been notified of such Successor Manager. For the avoidance of doubt, Collateral Manager Notes will be disregarded and have no voting rights with respect to any vote in respect effectiveness of any of the following actions: (i) the resignation or removal of the Collateral Manager as a result of Cause and (ii) the waiver of any event constituting Cause, and such Notes will be deemed not to be Outstanding in connection with any such vote. For any such action, if the Notes of the Controlling Class or the Subordinated Notes consist entirely of Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of Collateral Manager Notes, disregarding any Collateral Manager Notes. No compensation payable to a successor Collateral Manager from payments on the Collateral will be greater than that permitted to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified in this AgreementManager, all authority and power of the resigning or removed Collateral Manager under this Agreement and the Note Purchase Agreement, whether with respect to the Assets Collateral or otherwise, will shall automatically and without further action by any Person person or entity pass to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer and the successor will take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionManager.
Appears in 2 contracts
Samples: Collateral Management Agreement, Collateral Management Agreement (NewStar Financial, Inc.)
Appointment of Successor Collateral Manager. Notwithstanding (a) On and after the provisions of Section 11, no resignation or removal of receipt by the Collateral Manager or termination of a Collateral Manager Termination Notice pursuant to Section 6.11, the Collateral Manager shall continue to perform all servicing functions under this Agreement shall become effective until the acceptance date specified in the Collateral Manager Termination Notice or otherwise specified by the Administrative Agent in writing or, if no such date is specified in such Collateral Manager Termination Notice or otherwise specified by the Administrative Agent, until a date mutually agreed upon by the Collateral Manager and the Administrative Agent and shall be entitled to receive, to the extent of appointment by funds available therefor pursuant to Section 2.7, Section 2.8 or Section 2.9, as applicable, the Collateral Management Fee therefor until such date. The Administrative Agent may at any time following delivery of a Collateral Manager Termination Notice in its sole discretion, appoint a successor Collateral Manager collateral manager (the "Successor Collateral Manager") satisfying the ), and such Successor Criteria described below and notice of which has been given Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Rating AgencyAdministrative Agent and each Lender. Within 30 days after In the removal or resignation of event that a Successor Collateral Manager has not accepted its appointment at the time when the Collateral Manager (the "Manager Termination Date"), by written notice ceases to the Issuer and the Trustee, the Holders of a Majority of the Subordinated Notes (Collateral Manager Notes will not be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning act as Collateral Manager, the Trustee or any Holder of Notes may Administrative Agent shall petition a court of competent jurisdiction for to appoint any established financial institution or asset manager, having a net worth of not less than United States $50,000,000 and whose regular business includes the appointment servicing of a Successor Manager that satisfies Collateral, as the Successor Criteria. A Collateral Manager hereunder.
(b) Upon its appointment, the Successor Collateral Manager will satisfy shall be the "Successor Criteria" if: (i) that Successor Manager has demonstrated an ability successor in all respects to professionally and competently perform duties similar to those imposed upon the Collateral Manager to the Borrower with respect to servicing functions under this Agreement; (ii) that Successor Manager is legally qualified Agreement and has the capacity shall be subject to act as Collateral Manager and has agreed in writing to assume all of the responsibilities, duties and liabilities relating thereto placed on the Collateral Manager by the terms and provisions hereof, and all references in this Agreement to the Collateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager shall have (i) no liability with respect to any action performed by the terminated Collateral Manager prior to the date that the Successor Collateral Manager becomes the successor to the Collateral Manager or any claim of a third party based on any alleged action or inaction of the terminated Collateral Manager, (ii) no obligation to pay any taxes required to be paid by the Collateral Manager (provided that the Successor Collateral Manager shall pay any income taxes for which it is liable), (iii) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (iv) no liability or obligation with respect to any Collateral Manager indemnification obligations of any prior Collateral Manager, including the original Collateral Manager. The indemnification obligations of the Successor Collateral Manager upon becoming a Successor Collateral Manager, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Successor Collateral Manager shall have no liability relating to the representations and warranties of the Collateral Manager under this Agreement contained in Article IV.
(c) All authority and the Indenture; (iii) its appointment would not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the Investment Company Act; and (iv) the Rating Agency has been notified of such Successor Manager. For the avoidance of doubt, Collateral Manager Notes will be disregarded and have no voting rights with respect to any vote in respect of any of the following actions: (i) the removal of the Collateral Manager as a result of Cause and (ii) the waiver of any event constituting Cause, and such Notes will be deemed not to be Outstanding in connection with any such vote. For any such action, if the Notes of the Controlling Class or the Subordinated Notes consist entirely of Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of Collateral Manager Notes, disregarding any Collateral Manager Notes. No compensation payable to a successor Collateral Manager from payments on the Collateral will be greater than that permitted power granted to the Collateral Manager under this Agreement without (a) the prior written consent shall automatically cease and terminate upon termination of a Majority of each Class of Notes (each Class voting separately) this Agreement and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified in this Agreement, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, will automatically and without action by any Person shall pass to and be vested in the successor institution upon Borrower and, without limitation, the acceptance by Borrower is hereby authorized and empowered to execute and deliver, on behalf of the Collateral Manager, as attorney-in-fact or otherwise, all documents and other instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such institution transfer of its appointment under this Agreementservicing rights. The Issuer Collateral Manager agrees to cooperate with the Borrower in effecting the termination of the responsibilities and rights of the successor will take such action (or cause the outgoing Collateral Manager to take such actionconduct servicing of the Collateral.
(d) consistent with Notwithstanding anything contained in this Agreement to the contrary, a Successor Collateral Manager is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Collateral Manager relating to the Loans (collectively, the "Predecessor Collateral Manager Work Product") without any audit or other examination thereof, and such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Collateral Manager. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, "Errors") exist in any Predecessor Collateral Manager Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, "Continued Errors"), such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use its best efforts to prevent further Continued Errors. In the event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Administrative Agent, use its best efforts to reconstruct and reconcile such data as will be necessary is commercially reasonable to effect any correct such successionErrors and Continued Errors and to prevent future Continued Errors.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Franklin BSP Lending Corp), Loan and Servicing Agreement (Business Development Corp of America)
Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager"a) satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or Upon resignation of the Collateral Manager pursuant to Section 14.07, the Borrower may (with the consent of the Administrative Agent and the Required Lenders) at any time appoint a successor collateral manager (the "Manager Termination Date"“Successor Collateral Manager”), which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written notice assumption in a form acceptable to the Issuer Borrower and the TrusteeAdministrative Agent.
(b) Upon its appointment, the Holders of a Majority of the Subordinated Notes (Successor Collateral Manager Notes will not shall be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject successor in all respects to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning Collateral Manager, the Trustee or any Holder of Notes may petition a court of competent jurisdiction for the appointment of a Successor Manager that satisfies the Successor Criteria. A Successor Manager will satisfy the "Successor Criteria" if: (i) that Successor Manager has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager with respect to collateral management functions under this Agreement; (ii) that Successor Manager is legally qualified Agreement and has the capacity shall be subject to act as Collateral Manager and has agreed in writing to assume all of the responsibilities, duties and obligations of liabilities relating thereto placed on the Collateral Manager under by the terms and provisions hereof, and all references in this Agreement and to the IndentureCollateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager shall have (i) no liability with respect to any action performed by the terminated Collateral Manager prior to the date that the Successor Collateral Manager becomes the successor to the Collateral Manager or any claim of a third party based on any alleged action or inaction of the terminated Collateral Manager, (ii) no obligation to pay any taxes required to be paid by the Collateral Manager; provided that the Successor Collateral Manager shall pay any income taxes for which it is liable, (iii) its appointment would not cause or result in no obligation to pay any of the Issuer becomingfees and expenses of any other party to the transactions contemplated hereby, or require the pool of Assets to be registered as, an investment company under the Investment Company Act; and (iv) the Rating Agency has been notified of such Successor Manager. For the avoidance of doubt, Collateral Manager Notes will be disregarded and have no voting rights liability or obligation with respect to any vote in respect Collateral Manager indemnification obligations of any prior Collateral Manager, including the original Collateral Manager.
(c) Notwithstanding anything contained in this Agreement to the contrary, a Successor Collateral Manager is authorized to accept and rely on all of the following actions: accounting, records (iincluding computer records) the removal and work of the prior Collateral Manager as a result of Cause and relating to the Collateral Loans (iicollectively, the “Predecessor Collateral Manager Work Product”) the waiver of without any event constituting Causeaudit or other examination thereof, and such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionSuccessor Collateral Manager shall have no duty, if responsibility, obligation or liability for the Notes acts and omissions of the Controlling Class prior Collateral Manager. If any error, inaccuracy, omission or the Subordinated Notes consist entirely of incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral Manager NotesWork Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such action must be undertaken by Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use its best efforts to prevent further Continued Errors. In the required percentage event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the most senior Class of Notes that Administrative Agent, use its best efforts to reconstruct and reconcile such data as is not comprised entirely of Collateral Manager Notes, disregarding any Collateral Manager Notes. No compensation payable commercially reasonable to a successor Collateral Manager from payments on the Collateral will be greater than that permitted correct such Errors and Continued Errors and to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified in this Agreement, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, will automatically and without action by any Person pass to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer and the successor will take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionprevent future Continued Errors.
Appears in 2 contracts
Samples: Credit and Security Agreement (Business Development Corp of America), Credit and Security Agreement (Business Development Corp of America)
Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager"a) satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or Upon resignation of the Collateral Manager pursuant to Section 11.08, the Borrower may (with the consent of the Administrative Agent and the Required Lenders) at any time appoint a successor collateral manager (the "“Successor Collateral Manager”), which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. Upon the occurrence and continuance of a Collateral Manager Termination Date"Event, the Administrative Agent may (with the consent of the Required Lenders and, in the case of a Collateral Manager Termination Event arising solely under Section 6.03(a), with the consent of the BDC) at any time appoint a successor collateral manager, which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written notice assumption in a form acceptable to the Issuer Administrative Agent. No assignment of this Agreement by the Collateral Manager (including, without limitation, a change in control or management of the Collateral Manager which would be deemed an “assignment” under the Investment Advisers Act of 1940, as amended) shall be made unless such assignment is consented to in writing by the Borrower and the TrusteeAdministrative Agent (such consent not to be unreasonably withheld or delayed); provided, however, that nothing herein shall be construed to restrict the ability of the Administrative Agent to replace the Collateral Manager upon the occurrence of a Collateral Manager Termination Event pursuant to Section 11.09 or any obligations of the Collateral Manager in connection with such provisions.
(b) Upon its appointment (the “Assumption Date”), the Holders Successor Collateral Manager shall be the successor in all respects to the Collateral Manager with respect to collateral management functions under this Agreement subject to and in accordance with the terms of a Majority this Agreement (including without limitation Article XIII hereof) and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Collateral Manager by the terms and provisions hereof, and all references in this Agreement to the Collateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager shall not (i) be deemed to have assumed or to become liable for, or otherwise have any liability for, any duties, responsibilities, actions performed, breaches, defaults, claims, obligations or liabilities of the Subordinated Notes (terminated Collateral Manager Notes will not or any other predecessor Collateral Manager arising before the Assumption Date, (ii) have any obligation to pay any taxes required to be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor paid by the terminated Collateral Manager if it satisfies or any other predecessor Collateral Manager (provided that the Successor CriteriaCollateral Manager shall pay any income taxes for which it is liable), subject (iii) have any liability for any failure to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning perform its duties as Collateral Manager, the Trustee or any Holder loss or damages arising from such failure, that results from the actions (or inaction) of Notes may petition a court the terminated Collateral Manager or any other predecessor Collateral Manager on or before the Assumption Date, (iv) have any obligation to perform advancing or repurchase obligations, if any, of competent jurisdiction for the appointment Borrower, the terminated Collateral Manager or any other predecessor Collateral Manager unless it elects to do so in its sole discretion, (v) have any obligation to pay any of a Successor Manager that satisfies the Successor Criteria. A Successor Manager will satisfy fees and expenses of any other party to the "Successor Criteria" if: transaction contemplated by this Agreement or any Facility Document, (ivi) that Successor Manager has demonstrated an ability have any liability with respect to professionally any of the representations and competently perform duties similar to those imposed upon the warranties of any predecessor Collateral Manager under this Agreement; , (iivii) have any obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder or in the exercise of any of its rights and powers, if, in its reasonable judgment, it shall believe that repayment of such funds or adequate indemnity against such risk or liability is not assured to it and (viii) have any obligation to file or record any financing statements or other documents in order to perfect or continue any security interests contemplated by this Agreement unless it has been directed by the Administrative Agent to make such filing or recordation. The indemnification obligations of the Successor Manager is legally qualified and has the capacity Collateral Manager, upon becoming a Successor Collateral Manager, are expressly limited to those arising on account of its failure to act as in good faith and with reasonable care under the circumstances.
(c) The Collateral Manager agrees to cooperate and has agreed use its commercially reasonable efforts in writing effecting the transition of the responsibilities and rights of servicing of the Collateral, including, without limitation, the transfer to assume the Successor Collateral Manager for the administration by it of all cash amounts that shall at the time be held by the Collateral Manager for deposit, or have been deposited by the Collateral Manager, or thereafter received with respect to the Collateral and the delivery to the Successor Collateral Manager in an orderly and timely fashion of all files and records with respect to the Collateral and a computer data file in readable form containing all information necessary to enable the Successor Collateral Manager to service the Collateral. In addition, the Collateral Manager agrees to cooperate and use its commercially reasonable efforts in providing, at the expense of the Collateral Manager, the Successor Collateral Manager with reasonable access (including at the premises of the Collateral Manager) to the employees of the Collateral Manager, and any and all of the responsibilitiesbooks, duties records (in electronic or other form) or other information reasonably requested by it to enable the Successor Collateral Manager to assume the servicing functions hereunder and under this Agreement and to maintain a list of key servicing personnel and contact information.
(d) Notwithstanding the Successor Collateral Manager’s assumption of, and its agreement to perform and observe, all duties, responsibilities and obligations of the Collateral Manager under this Agreement arising on and after the Indenture; (iii) its appointment would Assumption Date, the Successor Collateral Manager shall not cause be deemed to have assumed or result in the Issuer becomingto become liable for, or require otherwise have any liability for, any duties, responsibilities, obligations or liabilities of the pool of Assets to be registered as, an investment company initial Collateral Manager or any other predecessor Collateral Manager arising under the Investment Company Act; and (iv) the Rating Agency has been notified terms of such Successor Manager. For the avoidance this Agreement, arising by operation of doubt, Collateral Manager Notes will be disregarded and have no voting rights law or otherwise with respect to the period ending on the Assumption Date, including, without limitation, any vote in respect of liability for, any duties, responsibilities, obligations or liabilities of the following actions: (i) initial Collateral Manager or any other predecessor Collateral Manager arising on or before the removal Assumption Date under this Agreement, regardless of when the liability, duty, responsibility or obligation of the initial Collateral Manager as a result or any other predecessor Collateral Manager therefor arose, whether provided by the terms of Cause and (ii) the waiver this Agreement arising by operation of any event constituting Causelaw or otherwise, and in no case will the Successor Collateral Manager have any liability for any failure to perform its duties as Collateral Manager, or any loss or damages arising from such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionfailure, if that results from the Notes actions (or inaction) of the Controlling Class or the Subordinated Notes consist entirely of initial Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of or any other predecessor Collateral Manager Notes, disregarding any on or before the Assumption Date.
(e) The Successor Collateral Manager Notes. No compensation payable undertakes to a successor Collateral Manager from payments on the Collateral will be greater than that permitted to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) perform only such duties and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified obligations as are specifically set forth in this Agreement, it being expressly understood by all authority parties hereto that there are no implied duties or obligations of the Successor Collateral Manager hereunder.
(f) Notwithstanding anything contained in this Agreement or any Facility Document to the contrary, the Successor Collateral Manager is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Collateral Manager relating to the Collateral Loans (collectively, the “Predecessor Collateral Manager Work Product”) without any audit or other examination thereof, except to the extent that it knows such records or work product to be incorrect, and such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Collateral Manager or any other predecessor Collateral Manager. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral Manager Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use commercially reasonable efforts to prevent further Continued Errors. In the event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Administrative Agent, use its commercially reasonable efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Collateral Manager shall be entitled to recover its costs thereby expended in accordance with the Priority of Payments.
(g) The Collateral Manager will, upon the request of the Successor Collateral Manager, provide the Successor Collateral Manager with a power of attorney providing that the Successor Collateral Manager is authorized and empowered to execute and deliver, on behalf of the Collateral Manager, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do so or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Collateral Manager under this Agreement.
(h) The Successor Collateral Manager shall not be liable for an action or omission to act hereunder, whether with respect except for its own willful misconduct, gross negligence or bad faith. Under no circumstances will the Successor Collateral Manager be liable for indirect, special, consequential or incidental damages, such as loss of use, revenue or profit. In no event shall the Successor Collateral Manager be liable to the Assets Borrower for any bad debts or otherwiseother defaults by Obligors.
(i) Except as set forth herein, will automatically and without action by the Successor Collateral Manager shall have no duty to review any Person pass information regarding the Collateral Manager, including any financial statements or the information set forth herein.
(j) If the Successor Collateral Manager is prevented from fulfilling its obligations hereunder as a result of government actions, regulations, fires, strikes, accidents, acts of God or other causes beyond the control of such party, the Successor Collateral Manager shall use commercially reasonable efforts to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer resume performance as soon as reasonably possible, and the successor will take Successor Collateral Manager’s obligations shall be suspended for a reasonable time during which such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionconditions exist.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Appointment of Successor Collateral Manager. Notwithstanding (a) Upon (x) the provisions occurrence and during the continuance of a Collateral Manager Default, notwithstanding anything herein to the contrary, but subject to Section 116.04(e), no resignation or removal the Administrative Agent, by notice to the Collateral Manager with a copy to the Borrower, the Equityholder, the Collateral Agent and the Lenders (such notice, a “Collateral Manager Default Notice”), may terminate all of the rights and obligations of the Collateral Manager or termination of as “Collateral Manager” under this Agreement shall become effective until and subject to the acceptance of appointment by proviso below appoint a successor Collateral Manager (the "“Successor Collateral Manager"”) satisfying and (y) the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or resignation of the Collateral Manager, the Administrative Agent, with (unless another Collateral Manager (Default or Event of Default has occurred and is continuing) the "Manager Termination Date")consent of the Borrower and the Equityholder and, by written in either case, upon notice to the Issuer Collateral Agent and the TrusteeLenders, the Holders of a Majority of the Subordinated Notes (Collateral Manager Notes will not be disregarded for this purpose) may propose appoint a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning Collateral Manager, which, in each case and for the Trustee avoidance of doubt may be the Administrative Agent or any Holder Lender, and, in each case, such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent in its sole discretion; provided that any such termination pursuant to the immediately preceding clause (x) shall not be effective until the earlier to occur of Notes may petition a court of competent jurisdiction for (I) the appointment of a Successor Collateral Manager that satisfies identified and approved by the Equityholder and the Administrative Agent on or prior to the last day of the Standstill Period and (II) the last day of the Standstill Period; provided further that, after receipt by the Collateral Manager of a Collateral Manager Default Notice and until the last day of the Standstill Period, or such earlier date on which a Successor CriteriaCollateral Manager is designated in accordance with this sentence, the Equityholder and the Administrative Agent shall use commercially reasonable efforts to cooperate to identify a replacement Collateral Manager satisfactory to the Equityholder and the Administrative Agent. A If the Equityholder and the Administrative Agent fail to agree on a replacement Collateral Manager acceptable to both parties prior to the end of the Standstill Period, the Administrative Agent shall designate the replacement Collateral Manager in its sole discretion. Until a Successor Collateral Manager will satisfy is appointed as set forth above, the "Successor Criteria" if: Collateral Manager shall (i) that unless otherwise notified by the Administrative Agent, continue to act in such capacity in accordance with Section 14.02 and (ii) as requested by the Administrative Agent in its sole discretion (A) terminate some or all of its activities as Collateral Manager hereunder by the Administrative Agent in its sole discretion as necessary or desirable, (B) provide such information as may be requested by the Administrative Agent to facilitate the transition of the performance of such activities to the Administrative Agent or any agent thereof and (C) take all other actions requested by the Administrative Agent, in each case to facilitate the transition of the performance of such activities to the Administrative Agent or any agent thereof.
(b) Upon its appointment, the Successor Collateral Manager has demonstrated an ability shall be the successor in all respects to professionally and competently perform duties similar to those imposed upon the Collateral Manager with respect to collateral management functions under this Agreement; (ii) that Successor Manager is legally qualified Agreement and has the capacity shall be subject to act as Collateral Manager and has agreed in writing to assume all of the responsibilities, duties and obligations of liabilities relating thereto placed on the Collateral Manager under by the terms and provisions hereof, and all references in this Agreement and to the IndentureCollateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager shall have (i) no liability with respect to any action performed by the terminated Collateral Manager prior to the date that the Successor Collateral Manager becomes the successor to the Collateral Manager or any claim of a third party based on any alleged action or inaction of the terminated Collateral Manager, (ii) no obligation to pay any taxes required to be paid by the Collateral Manager; provided that the Successor Collateral Manager shall pay any income taxes for which it is liable, (iii) its appointment would not cause or result in no obligation to pay any of the Issuer becomingfees and expenses of any other party to the transactions contemplated hereby, or require the pool of Assets to be registered as, an investment company under the Investment Company Act; and (iv) the Rating Agency has been notified of such Successor Manager. For the avoidance of doubt, Collateral Manager Notes will be disregarded and have no voting rights liability or obligation with respect to any vote in respect Collateral Manager indemnification obligations of any prior Collateral Manager, including the original Collateral Manager.
(c) Notwithstanding anything contained in this Agreement to the contrary, a Successor Collateral Manager is authorized to accept and rely on all of the following actions: accounting, records (iincluding computer records) the removal and work of the prior Collateral Manager as a result of Cause and relating to the Collateral Assets (iicollectively, the “Predecessor Collateral Manager Work Product”) the waiver of without any event constituting Causeaudit or other examination thereof, and such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionSuccessor Collateral Manager shall have no duty, if responsibility, obligation or liability for the Notes acts and omissions of the Controlling Class prior Collateral Manager. If any error, inaccuracy, omission or the Subordinated Notes consist entirely of incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral Manager NotesWork Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such action must be undertaken by Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use its best efforts to prevent further Continued Errors. In the required percentage event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the most senior Class of Notes that Administrative Agent, use its best efforts to reconstruct and reconcile such data as is not comprised entirely of Collateral Manager Notes, disregarding any Collateral Manager Notes. No compensation payable commercially reasonable to a successor Collateral Manager from payments on the Collateral will be greater than that permitted correct such Errors and Continued Errors and to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified in this Agreement, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, will automatically and without action by any Person pass to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer and the successor will take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionprevent future Continued Errors.
Appears in 2 contracts
Samples: Credit and Security Agreement (Diameter Credit Co), Credit and Security Agreement (Diameter Credit Co)
Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager"a) satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or Upon resignation of the Collateral Manager pursuant to Section 11.08 or the occurrence and continuance of a Collateral Manager Default or a Collateral Manager Replacement Event, the Administrative Agent may (with the consent of the Required Lenders) at any time appoint a successor collateral manager (the "Manager Termination Date"“Successor Collateral Manager”), by written notice to which, for the Issuer and avoidance of doubt may be the Trustee, the Holders of a Majority of the Subordinated Notes (Collateral Manager Notes will not be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning Backup Collateral Manager, the Trustee Administrative Agent or any Holder Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. No assignment of Notes may petition this Agreement by the Collateral Manager (including, without limitation, a court change in control or management of competent jurisdiction for the appointment Collateral Manager which would be deemed an “assignment” under the Investment Advisers Act of 1940, as amended) shall be made unless such assignment is consented to in writing by the Borrower, provided, however, that nothing herein shall be construed to restrict the ability of the Administrative Agent to replace the Collateral Manager upon the occurrence of a Successor Collateral Manager that satisfies Default or a Collateral Manager Replacement Event pursuant to Section 11.09 hereof or any obligations of the Collateral Manager in connection with such provisions.
(b) Upon its appointment (the “Assumption Date”), the Successor Criteria. A Collateral Manager shall be the successor in all respects to the Collateral Manager with respect to collateral management functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Collateral Manager by the terms and provisions hereof, and all references in this Agreement to the Collateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager will satisfy the "Successor Criteria" if: shall not (i) be deemed to have assumed or to become liable for, or otherwise have any liability for, any duties, responsibilities, actions performed, breaches, defaults, claims, obligations or liabilities of the terminated Collateral Manager or any other predecessor Collateral Manager arising before the Assumption Date, (ii) have any obligation to pay any taxes required to be paid by the terminated Collateral Manager or any other predecessor Collateral Manager (provided that the Successor Collateral Manager has demonstrated an ability shall pay any income taxes for which it is liable), (iii) have any liability for any failure to professionally perform its duties as Collateral Manager, or any loss or damages arising from such failure, that results from the actions (or inaction) of the terminated Collateral Manager or any other predecessor Collateral Manager on or before the Assumption Date, (iv) have any obligation to perform advancing or repurchase obligations, if any, of the Borrower, the terminated Collateral Manager or any other predecessor Collateral Manager unless it elects to do so in its sole discretion, (v) have any obligation to pay any of the fees and competently perform duties similar expenses of any other party to those imposed upon the transaction contemplated by this Agreement or any Facility Document, (vi) have any liability with respect to any of the representations and warranties of the Collateral Manager under this Agreement; , (iivii) have any obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder or in the exercise of any of its rights and powers, if, in its reasonable judgment, it shall believe that repayment of such funds or adequate indemnity against such risk or liability is not assured to it and (viii) have any obligation to file or record any financing statements or other documents in order to perfect or continue any security interests contemplated by this Agreement unless it has been directed by the Administrative Agent to make such filing or recordation. The indemnification obligations of the Successor Manager is legally qualified and has the capacity Collateral Manager, upon becoming a Successor Collateral Manager, are expressly limited to those arising on account of its failure to act as in good faith and with reasonable care under the circumstances.
(c) The Collateral Manager agrees to cooperate and has agreed use its commercially reasonable efforts in writing effecting the transition of the responsibilities and rights of servicing of the Collateral, including, without limitation, the transfer to assume the Successor Collateral Manager for the administration by it of all cash amounts that shall at the time be held by the Collateral Manager for deposit, or have been deposited by the Collateral Manager, or thereafter received with respect to the Collateral and the delivery to the Successor Collateral Manager in an orderly and timely fashion of all files and records with respect to the Collateral and a computer data file in readable form containing all information necessary to enable the Successor Collateral Manager to service the Collateral. In addition, the Collateral Manager agrees to cooperate and use its commercially reasonable efforts in providing, at the expense of the Collateral Manager, the Successor Collateral Manager with reasonable access (including at the premises of the Collateral Manager) to the employees of the Collateral Manager, and any and all of the responsibilitiesbooks, duties records (in electronic or other form) or other information reasonably requested by it to enable the Successor Collateral Manager to assume the servicing functions hereunder and under this Agreement and to maintain a list of key servicing personnel and contact information.
(d) Notwithstanding the Successor Collateral Manager’s assumption of, and its agreement to perform and observe, all duties, responsibilities and obligations of the Collateral Manager under this Agreement arising on and after the Indenture; (iii) its appointment would Assumption Date, the Successor Collateral Manager shall not cause be deemed to have assumed or result in the Issuer becomingto become liable for, or require otherwise have any liability for, any duties, responsibilities, obligations or liabilities of the pool of Assets to be registered as, an investment company initial Collateral Manager or any other predecessor Collateral Manager arising under the Investment Company Act; and (iv) the Rating Agency has been notified terms of such Successor Manager. For the avoidance this Agreement, arising by operation of doubt, Collateral Manager Notes will be disregarded and have no voting rights law or otherwise with respect to the period ending on the Assumption Date, including, without limitation, any vote in respect of liability for, any duties, responsibilities, obligations or liabilities of the following actions: (i) initial Collateral Manager or any other predecessor Collateral Manager arising on or before the removal Assumption Date under this Agreement, regardless of when the liability, duty, responsibility or obligation of the initial Collateral Manager as a result or any other predecessor Collateral Manager therefor arose, whether provided by the terms of Cause and (ii) the waiver this Agreement arising by operation of any event constituting Causelaw or otherwise, and in no case will the Successor Collateral Manager have any liability for any failure to perform its duties as Collateral Manager, or any loss or damages arising from such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionfailure, if that results from the Notes actions (or inaction) of the Controlling Class or the Subordinated Notes consist entirely of initial Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of or any other predecessor Collateral Manager Notes, disregarding any on or before the Assumption Date.
(e) The Successor Collateral Manager Notes. No compensation payable undertakes to a successor Collateral Manager from payments on the Collateral will be greater than that permitted to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) perform only such duties and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified obligations as are specifically set forth in this Agreement, it being expressly understood by all authority parties hereto that there are no implied duties or obligations of the Successor Collateral Manager hereunder.
(f) Notwithstanding anything contained in this Agreement or any Facility Document to the contrary, the Successor Collateral Manager is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Collateral Manager relating to the Collateral Loans (collectively, the “Predecessor Collateral Manager Work Product”) without any audit or other examination thereof, except to the extent that it knows such records or work product to be incorrect, and such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Collateral Manager or any other predecessor Collateral Manager. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral Manager Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use commercially reasonable efforts to prevent further Continued Errors. In the event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Administrative Agent, use its commercially reasonable efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Collateral Manager shall be entitled to recover its costs thereby expended in accordance with the Priority of Payments.
(g) The Collateral Manager will, upon the request of the Successor Collateral Manager, provide the Successor Collateral Manager with a power of attorney providing that the Successor Collateral Manager is authorized and empowered to execute and deliver, on behalf of the Collateral Manager, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do so or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Collateral Manager under this Agreement.
(h) The Successor Collateral Manager shall not be liable for an action or omission to act hereunder, whether with respect except for its own willful misconduct, gross negligence or bad faith. Under no circumstances will the Successor Collateral Manager be liable for indirect, special, consequential or incidental damages, such as loss of use, revenue or profit. In no event shall the Successor Collateral Manager be liable to the Assets Borrower for any bad debts or otherwiseother defaults by Obligors.
(i) Except as set forth herein, will automatically and without action by the Successor Collateral Manager shall have no duty to review any Person pass information regarding the Collateral Manager, including any financial statements or the information set forth herein.
(j) If the Successor Collateral Manager is prevented from fulfilling its obligations hereunder as a result of government actions, regulations, fires, strikes, accidents, acts of God or other causes beyond the control of such party, the Successor Collateral Manager shall use commercially reasonable efforts to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer resume performance as soon as reasonably possible, and the successor will take Successor Collateral Manager’s obligations shall be suspended for a reasonable time during which such action (or cause conditions exist. Except as set forth herein, the outgoing Backup Collateral Manager shall have no duty to take such action) consistent with this Agreement and as will be necessary to effect review any such successioninformation regarding the Collateral Manager, including any financial statements or the information set forth herein.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager"a) satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or Upon resignation of the Collateral Manager pursuant to Section 11.08, the Borrower may (with the consent of the Administrative Agent and the Required Lenders) at any time appoint a successor collateral manager (the "“Successor Collateral Manager”), which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. Upon the occurrence and continuance of a Collateral Manager Termination Date"Event, the Administrative Agent may (with the consent of the Required Lenders and, in the case of a Collateral Manager Termination Event arising solely under Section 6.03(a), with the consent of the Borrower) at any time appoint a successor collateral manager, which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written notice assumption in a form acceptable to the Issuer Administrative Agent. No assignment of this Agreement by the Collateral Manager (including, without limitation, a change in control or management of the Collateral Manager which would be deemed an “assignment” under the Investment Advisers Act of 1940, as amended) shall be made unless such assignment is consented to in writing by the Borrower and the TrusteeAdministrative Agent, provided, however, that nothing herein shall be construed to restrict the ability of the Administrative Agent to replace the Collateral Manager upon the occurrence of a Collateral Manager Termination Event pursuant to Section 11.09 or any obligations of the Collateral Manager in connection with such provisions.
(b) Upon its appointment (the “Assumption Date”), the Holders Successor Collateral Manager shall be the successor in all respects to the Collateral Manager with respect to collateral management functions under this Agreement subject to and in accordance with the terms of a Majority this Agreement (including without limitation Article XIII hereof) and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Collateral Manager by the terms and provisions hereof, and all references in this Agreement to the Collateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager shall not (i) be deemed to have assumed or to become liable for, or otherwise have any liability for, any duties, responsibilities, actions performed, breaches, defaults, claims, obligations or liabilities of the Subordinated Notes (terminated Collateral Manager Notes will not or any other predecessor Collateral Manager arising before the Assumption Date, (ii) have any obligation to pay any taxes required to be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor paid by the terminated Collateral Manager if it satisfies or any other predecessor Collateral Manager (provided that the Successor CriteriaCollateral Manager shall pay any income taxes for which it is liable), subject (iii) have any liability for any failure to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning perform its duties as Collateral Manager, the Trustee or any Holder loss or damages arising from such failure, that results from the actions (or inaction) of Notes may petition a court the terminated Collateral Manager or any other predecessor Collateral Manager on or before the Assumption Date, (iv) have any obligation to perform advancing or repurchase obligations, if any, of competent jurisdiction for the appointment Borrower, the terminated Collateral Manager or any other predecessor Collateral Manager unless it elects to do so in its sole discretion, (v) have any obligation to pay any of a Successor Manager that satisfies the Successor Criteria. A Successor Manager will satisfy fees and expenses of any other party to the "Successor Criteria" if: transaction contemplated by this Agreement or any Facility Document, (ivi) that Successor Manager has demonstrated an ability have any liability with respect to professionally any of the representations and competently perform duties similar to those imposed upon the warranties of any predecessor Collateral Manager under this Agreement; , (iivii) have any obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder or in the exercise of any of its rights and powers, if, in its reasonable judgment, it shall believe that repayment of such funds or adequate indemnity against such risk or liability is not assured to it and (viii) have any obligation to file or record any financing statements or other documents in order to perfect or continue any security interests contemplated by this Agreement unless it has been directed by the Administrative Agent to make such filing or recordation. The indemnification obligations of the Successor Manager is legally qualified and has the capacity Collateral Manager, upon becoming a Successor Collateral Manager, are expressly limited to those arising on account of its failure to act as in good faith and with reasonable care under the circumstances.
(c) The Collateral Manager agrees to cooperate and has agreed use its commercially reasonable efforts in writing effecting the transition of the responsibilities and rights of servicing of the Collateral, including, without limitation, the transfer to assume the Successor Collateral Manager for the administration by it of all cash amounts that shall at the time be held by the Collateral Manager for deposit, or have been deposited by the Collateral Manager, or thereafter received with respect to the Collateral and the delivery to the Successor Collateral Manager in an orderly and timely fashion of all files and records with respect to the Collateral and a computer data file in readable form containing all information necessary to enable the Successor Collateral Manager to service the Collateral. In addition, the Collateral Manager agrees to cooperate and use its commercially reasonable efforts in providing, at the expense of the Collateral Manager, the Successor Collateral Manager with reasonable access (including at the premises of the Collateral Manager) to the employees of the Collateral Manager, and any and all of the responsibilitiesbooks, duties records (in electronic or other form) or other information reasonably requested by it to enable the Successor Collateral Manager to assume the servicing functions hereunder and under this Agreement and to maintain a list of key servicing personnel and contact information.
(d) Notwithstanding the Successor Collateral Manager’s assumption of, and its agreement to perform and observe, all duties, responsibilities and obligations of the Collateral Manager under this Agreement arising on and after the Indenture; (iii) its appointment would Assumption Date, the Successor Collateral Manager shall not cause be deemed to have assumed or result in the Issuer becomingto become liable for, or require otherwise have any liability for, any duties, responsibilities, obligations or liabilities of the pool of Assets to be registered as, an investment company initial Collateral Manager or any other predecessor Collateral Manager arising under the Investment Company Act; and (iv) the Rating Agency has been notified terms of such Successor Manager. For the avoidance this Agreement, arising by operation of doubt, Collateral Manager Notes will be disregarded and have no voting rights law or otherwise with respect to the period ending on the Assumption Date, including, without limitation, any vote in respect of liability for, any duties, responsibilities, obligations or liabilities of the following actions: (i) initial Collateral Manager or any other predecessor Collateral Manager arising on or before the removal Assumption Date under this Agreement, regardless of when the liability, duty, responsibility or obligation of the initial Collateral Manager as a result or any other predecessor Collateral Manager therefor arose, whether provided by the terms of Cause and (ii) the waiver this Agreement arising by operation of any event constituting Causelaw or otherwise, and in no case will the Successor Collateral Manager have any liability for any failure to perform its duties as Collateral Manager, or any loss or damages arising from such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionfailure, if that results from the Notes actions (or inaction) of the Controlling Class or the Subordinated Notes consist entirely of initial Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of or any other predecessor Collateral Manager Notes, disregarding any on or before the Assumption Date.
(e) The Successor Collateral Manager Notes. No compensation payable undertakes to a successor Collateral Manager from payments on the Collateral will be greater than that permitted to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) perform only such duties and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified obligations as are specifically set forth in this Agreement, it being expressly understood by all authority parties hereto that there are no implied duties or obligations of the Successor Collateral Manager hereunder.
(f) Notwithstanding anything contained in this Agreement or any Facility Document to the contrary, the Successor Collateral Manager is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Collateral Manager relating to the Collateral Loans (collectively, the “Predecessor Collateral Manager Work Product”) without any audit or other examination thereof, except to the extent that it knows such records or work product to be incorrect, and such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Collateral Manager or any other predecessor Collateral Manager. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral Manager Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use commercially reasonable efforts to prevent further Continued Errors. In the event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Administrative Agent, use its commercially reasonable efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Collateral Manager shall be entitled to recover its costs thereby expended in accordance with the Priority of Payments.
(g) The Collateral Manager will, upon the request of the Successor Collateral Manager, provide the Successor Collateral Manager with a power of attorney providing that the Successor Collateral Manager is authorized and empowered to execute and deliver, on behalf of the Collateral Manager, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do so or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Collateral Manager under this Agreement.
(h) The Successor Collateral Manager shall not be liable for an action or omission to act hereunder, whether with respect except for its own willful misconduct, gross negligence or bad faith. Under no circumstances will the Successor Collateral Manager be liable for indirect, special, consequential or incidental damages, such as loss of use, revenue or profit. In no event shall the Successor Collateral Manager be liable to the Assets Borrower for any bad debts or otherwiseother defaults by Obligors.
(i) Except as set forth herein, will automatically and without action by the Successor Collateral Manager shall have no duty to review any Person pass information regarding the Collateral Manager, including any financial statements or the information set forth herein.
(j) If the Successor Collateral Manager is prevented from fulfilling its obligations hereunder as a result of government actions, regulations, fires, strikes, accidents, acts of God or other causes beyond the control of such party, the Successor Collateral Manager shall use commercially reasonable efforts to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer resume performance as soon as reasonably possible, and the successor will take Successor Collateral Manager’s obligations shall be suspended for a reasonable time during which such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionconditions exist.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Capitala Finance Corp.)
Appointment of Successor Collateral Manager. Notwithstanding (a) Upon the occurrence and during the continuance of a Collateral Manager Default, subject to Section 6.04(e), the Administrative Agent may, upon prior written notice to the Collateral Manager, direct the Collateral Manager to exercise the Collateral Manager’s rights and obligations under the Facility Documents, including (i) consent to modifications to Collateral Assets, (ii) take any permitted discretionary action with respect to Collateral Assets and (iii) direct the sales and other dispositions of Collateral Assets. If the Collateral Manager fails to take any action or cease any action (other than any action that is prohibited by law or contract or would result in harm or liability to the Collateral Manager) as directed by the Administrative Agent pursuant to this Section 14.08 within ten (10) Business Days of such notice, the Standstill Period shall terminate.
(b) Upon (x) the occurrence and during the continuance of a Collateral Manager Default, notwithstanding anything herein to the contrary, but subject to Section 6.04(e), the Administrative Agent, by notice to the Collateral Manager with a copy to the Borrower, the Equityholder, the Collateral Agent and the Lenders (such notice, a “Collateral Manager Default Notice”), may notify the Collateral Manager of the Administrative Agent’s intent to terminate all of the rights and obligations of the Collateral Manager as “Collateral Manager” under this Agreement and subject to the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by 14.08(c) appoint a successor Collateral Manager (the "“Successor Collateral Manager"”) satisfying at the Successor Criteria described below end of the Standstill Period and notice of which has been given to (y) the Rating Agency. Within 30 days after the removal or resignation of the Collateral Manager, the Administrative Agent, with (unless another Collateral Manager (Default or Event of Default has occurred and is continuing) the "Manager Termination Date")consent of the Borrower and the Equityholder and, by written upon notice to the Issuer and the TrusteeBorrower, the Holders of a Majority of the Subordinated Notes (Collateral Manager Notes will not be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning Collateral Manager, the Trustee Collateral Agent and the Lenders, may appoint a Successor Collateral Manager, which, for the avoidance of doubt may be the Administrative Agent or any Holder Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent in its sole discretion.
(c) If the Obligations are not Paid in Full prior to the end of Notes the Standstill Period, the Administrative Agent, upon notice to the Borrower, the Collateral Manager, the Collateral Agent and the Lenders, may petition appoint a court of competent jurisdiction Successor Collateral Manager, which, for the avoidance of doubt, may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent in its sole discretion; provided that after receipt by the Collateral Manager of a Collateral Manager Default Notice and until the last day of the Standstill Period if a Notice of Repayment in Full has not been delivered, the Equityholder and the Administrative Agent shall use commercially reasonable efforts to cooperate to identify a replacement Collateral Manager satisfactory to the Equityholder and the Administrative Agent. If the Equityholder and the Administrative Agent fail to agree on a replacement Collateral Manager acceptable to both parties prior to the end of the Standstill Period, the Administrative Agent shall designate the replacement Collateral Manager in its sole discretion. Until a Successor Collateral Manager that satisfies is appointed as set forth in Section 14.08(b) and (c), the Successor Criteria. A Successor Collateral Manager will satisfy the "Successor Criteria" if: shall (i) that unless otherwise notified by the Administrative Agent, continue to act in such capacity in accordance with Section 14.02 and (ii) as requested by the Administrative Agent in its sole discretion (A) terminate some or all of its activities as Collateral Manager hereunder by the Administrative Agent in its sole discretion as necessary or desirable, (B) provide such information as may be requested by the Administrative Agent to facilitate the transition of the performance of such activities to the Administrative Agent or any agent thereof and (C) take all other actions requested by the Administrative Agent, in each case to facilitate the transition of the performance of such activities to the Administrative Agent or any agent thereof
(d) Upon its appointment, the Successor Collateral Manager has demonstrated an ability shall be the successor in all respects to professionally and competently perform duties similar to those imposed upon the Collateral Manager with respect to collateral management functions under this Agreement; (ii) that Successor Manager is legally qualified Agreement and has the capacity shall be subject to act as Collateral Manager and has agreed in writing to assume all of the responsibilities, duties and obligations of liabilities relating thereto placed on the Collateral Manager under by the terms and provisions hereof and by law, and all references in this Agreement and to the IndentureCollateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager shall have (i) no liability with respect to any action performed by the terminated Collateral Manager prior to the date that the Successor Collateral Manager becomes the successor to the Collateral Manager or any claim of a third party based on any alleged action or inaction of the terminated Collateral Manager, (ii) no obligation to pay any taxes required to be paid by the Collateral Manager; provided that the Successor Collateral Manager shall pay any income taxes for which it is liable, (iii) its appointment would not cause or result in no obligation to pay any of the Issuer becomingfees and expenses of any other party to the transactions contemplated hereby, or require the pool of Assets to be registered as, an investment company under the Investment Company Act; and (iv) the Rating Agency has been notified of such Successor Manager. For the avoidance of doubt, Collateral Manager Notes will be disregarded and have no voting rights liability or obligation with respect to any vote in respect Collateral Manager indemnification obligations of any prior Collateral Manager, including the original Collateral Manager.
(e) Notwithstanding anything contained in this Agreement to the contrary, a Successor Collateral Manager is authorized to accept and rely on all of the following actions: accounting, records (iincluding computer records) the removal and work of the prior Collateral Manager as a result of Cause and relating to the Collateral Assets (iicollectively, the “Predecessor Collateral Manager Work Product”) the waiver of without any event constituting Causeaudit or other examination thereof, and such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionSuccessor Collateral Manager shall have no duty, if responsibility, obligation or liability for the Notes acts and omissions of the Controlling Class prior Collateral Manager. If any error, inaccuracy, omission or the Subordinated Notes consist entirely of incorrect or non‑standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral Manager NotesWork Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such action must be undertaken by Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use its best efforts to prevent further Continued Errors. In the required percentage event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the most senior Class of Notes that Administrative Agent, use its best efforts to reconstruct and reconcile such data as is not comprised entirely of Collateral Manager Notes, disregarding any Collateral Manager Notes. No compensation payable commercially reasonable to a successor Collateral Manager from payments on the Collateral will be greater than that permitted correct such Errors and Continued Errors and to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified in this Agreement, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, will automatically and without action by any Person pass to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer and the successor will take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionprevent future Continued Errors.
Appears in 1 contract
Samples: Credit and Security Agreement (Fidelity Private Credit Fund)
Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager"a) satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or Upon resignation of the Collateral Manager pursuant to Section 11.08, the Borrower may (with the consent of the Administrative Agent and the Required Lenders) at any time appoint a successor collateral manager (the "“Successor Collateral Manager”), which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. Upon the occurrence and continuance of a Collateral Manager Termination Date"Event, the Administrative Agent may (with the consent of the Required Lenders and, in the case of a Collateral Manager Termination Event arising solely under Section 6.03(a), with the consent of the BDC) at any time appoint a successor collateral manager, which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written notice assumption in a form acceptable to the Issuer Administrative Agent. No assignment of this Agreement by the Collateral Manager (including, without limitation, a change in control or management of the Collateral Manager which would be deemed an “assignment” under the Investment Advisers Act of 1940, as amended) shall be made unless such assignment is consented to in writing by the Borrower and the TrusteeAdministrative Agent (such consent not to be unreasonably withheld or delayed); provided, however, that nothing herein shall be construed to restrict the ability of the Administrative Agent to replace the Collateral Manager upon the occurrence of a Collateral Manager Termination Event pursuant to Section 11.09 or any obligations of the Collateral Manager in connection with such provisions.
(b) Upon its appointment (the “Assumption Date”), the Holders Successor Collateral Manager shall be the successor in all respects to the Collateral Manager with respect to collateral management functions under this Agreement subject to and in accordance with the terms of a Majority this Agreement (including without limitation Article XIII hereof) and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Collateral Manager by the terms and provisions hereof, and all references in this Agreement to the Collateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager shall not (i) be deemed to have assumed or to become liable for, or otherwise have any liability for, any duties, responsibilities, actions performed, breaches, defaults, claims, obligations or liabilities of the Subordinated Notes (terminated Collateral Manager Notes will not or any other predecessor Collateral Manager arising before the Assumption Date, (ii) have any obligation to pay any taxes required to be disregarded for this purpose) may propose a Successor Manager. The Issuer will appoint such Successor paid by the terminated Collateral Manager if it satisfies or any other predecessor Collateral Manager (provided that the Successor CriteriaCollateral Manager shall pay any income taxes for which it is liable), subject (iii) have any liability for any failure to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning perform its duties as Collateral Manager, the Trustee or any Holder loss or damages arising from such failure, that results from the actions (or inaction) of Notes may petition a court the terminated Collateral Manager or any other predecessor Collateral Manager on or before the Assumption Date, (iv) have any obligation to perform advancing or repurchase obligations, if any, of competent jurisdiction for the appointment Borrower, the terminated Collateral Manager or any other predecessor Collateral Manager unless it elects to do so in its sole discretion, (v) have any obligation to pay any of a Successor Manager that satisfies the Successor Criteria. A Successor Manager will satisfy fees and expenses of any other party to the "Successor Criteria" if: transaction contemplated by this Agreement or any Facility Document, (ivi) that Successor Manager has demonstrated an ability have any liability with respect to professionally any of the representations and competently perform duties similar to those imposed upon the warranties of any predecessor Collateral Manager under this Agreement; , (iivii) that Successor Manager is legally qualified and has have any obligation to expend or risk its own funds or otherwise incur any financial liability in the capacity to act as performance of its duties hereunder or in the exercise of any of its rights
(c) The Collateral Manager agrees to cooperate and has agreed use its commercially reasonable efforts in writing effecting the transition of the responsibilities and rights of servicing of the Collateral, including, without limitation, the transfer to assume the Successor Collateral Manager for the administration by it of all cash amounts that shall at the time be held by the Collateral Manager for deposit, or have been deposited by the Collateral Manager, or thereafter received with respect to the Collateral and the delivery to the Successor Collateral Manager in an orderly and timely fashion of all files and records with respect to the Collateral and a computer data file in readable form containing all information necessary to enable the Successor Collateral Manager to service the Collateral. In addition, the Collateral Manager agrees to cooperate and use its commercially reasonable efforts in providing, at the expense of the Collateral Manager, the Successor Collateral Manager with reasonable access (including at the premises of the Collateral Manager) to the employees of the Collateral Manager, and any and all of the responsibilitiesbooks, duties records (in electronic or other form) or other information reasonably requested by it to enable the Successor Collateral Manager to assume the servicing functions hereunder and under this Agreement and to maintain a list of key servicing personnel and contact information.
(d) Notwithstanding the Successor Collateral Manager’s assumption of, and its agreement to perform and observe, all duties, responsibilities and obligations of the Collateral Manager under this Agreement arising on and after the Indenture; (iii) its appointment would Assumption Date, the Successor Collateral Manager shall not cause be deemed to have assumed or result in the Issuer becomingto become liable for, or require otherwise have any liability for, any duties, responsibilities, obligations or liabilities of the pool of Assets to be registered as, an investment company initial Collateral Manager or any other predecessor Collateral Manager arising under the Investment Company Act; and (iv) the Rating Agency has been notified terms of such Successor Manager. For the avoidance this Agreement, arising by operation of doubt, Collateral Manager Notes will be disregarded and have no voting rights law or otherwise with respect to the period ending on the Assumption Date, including, without limitation, any vote in respect of liability for, any duties, responsibilities, obligations or liabilities of the following actions: (i) initial Collateral Manager or any other predecessor Collateral Manager arising on or before the removal Assumption Date under this Agreement, regardless of when the liability, duty, responsibility or obligation of the initial Collateral Manager as a result or any other predecessor Collateral Manager therefor arose, whether provided by the terms of Cause and (ii) the waiver this Agreement arising by operation of any event constituting Causelaw or otherwise, and in no case will the Successor Collateral Manager have any liability for any failure to perform its duties as Collateral Manager, or any loss or damages arising from such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionfailure, if that results from the Notes actions (or inaction) of the Controlling Class or the Subordinated Notes consist entirely of initial Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of or any other predecessor Collateral Manager Notes, disregarding any on or before the Assumption Date.
(e) The Successor Collateral Manager Notes. No compensation payable undertakes to a successor Collateral Manager from payments on the Collateral will be greater than that permitted to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) perform only such duties and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified obligations as are specifically set forth in this Agreement, it being expressly understood by all authority and power parties hereto that there are no implied duties or obligations of the Successor Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, will automatically and without action by any Person pass to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer and the successor will take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionhereunder.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager"ff) satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or Upon resignation of the Collateral Manager pursuant to Section 11.08, the Borrower may (with the consent of the Administrative Agent and the Required Lenders) at any time appoint a successor collateral manager (the "“Successor Collateral Manager”), which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. Upon the occurrence and continuance of a Collateral Manager Termination Date"Event, the Administrative Agent may (with the consent of the Required Lenders and, in the case of a Collateral Manager Termination Event arising solely under Section 6.03(a), by written notice to with the Issuer and the Trustee, the Holders of a Majority consent of the Subordinated Notes (Collateral Manager Notes will not be disregarded for this purposeBorrower) may propose at any time appoint a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning Collateral Manager, which, for the Trustee avoidance of doubt may be the Administrative Agent or any Holder Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. No assignment of Notes may petition this Agreement by the Collateral Manager (including, without limitation, a court change in control or management of competent jurisdiction for the appointment Collateral Manager which would be deemed an “assignment” under the Investment Advisers Act of 1940, as amended) shall be made unless such assignment is consented to in writing by the Borrower and the Administrative Agent, provided, however, that nothing herein shall be construed to restrict the ability of the Administrative Agent to replace the Collateral Manager upon the occurrence of a Successor Collateral Manager that satisfies Termination Event pursuant to this Section 11.09 or any obligations of the Collateral Manager in connection with such provisions.
(a) Upon its appointment (the “Assumption Date”), the Successor Criteria. A Collateral Manager shall be the successor in all respects to the Collateral Manager with respect to collateral management functions under this Agreement subject to and in accordance with the terms of this Agreement (including without limitation Article XIII hereof) and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Collateral Manager by the terms and provisions hereof, and all references in this Agreement to the Collateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager will satisfy the "Successor Criteria" if: shall not (i) be deemed to have assumed or to become liable for, or otherwise have any liability for, any duties, responsibilities, actions performed, breaches, defaults, claims, obligations or liabilities of the terminated Collateral Manager or any other predecessor Collateral Manager arising before the Assumption Date, (ii) have any obligation to pay any taxes required to be paid by the terminated Collateral Manager or any other predecessor Collateral Manager (provided that the Successor Collateral Manager has demonstrated an ability shall pay any income taxes for which it is liable), (iii) have any liability for any failure to professionally perform its duties as Collateral Manager, or any loss or damages arising from such failure, that results from the actions (or inaction) of the terminated Collateral Manager or any other predecessor Collateral Manager on or before the Assumption Date, (iv) have any obligation to perform advancing or repurchase obligations, if any, of the Borrower, the terminated Collateral Manager or any other predecessor Collateral Manager unless it elects to do so in its sole discretion, (v) have any obligation to pay any of the fees and competently perform duties similar expenses of any other party to those imposed upon the transaction contemplated by this Agreement or any Facility Document, (vi) have any liability with respect to any of the representations and warranties of any predecessor Collateral Manager under this Agreement; , (iivii) have any obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder or in the exercise of any of its rights and powers, if, in its reasonable judgment, it shall believe that repayment of such funds or adequate indemnity against such risk or liability is not assured to it and (viii) have any obligation to file or record any Financing Statements or other documents in order to perfect or continue any security interests contemplated by this Agreement unless it has been directed by the Administrative Agent to make such filing or recordation. The indemnification obligations of the Successor Manager is legally qualified and has the capacity Collateral Manager, upon becoming a Successor Collateral Manager, are expressly limited to those arising on account of its failure to act as in good faith and with reasonable care under the circumstances.
(b) The Collateral Manager agrees to cooperate and has agreed use its commercially reasonable efforts in writing effecting the transition of the responsibilities and rights of servicing of the Collateral, including, without limitation, the transfer to assume the Successor Collateral Manager for the administration by it of all cash amounts that shall at the time be held by the Collateral Manager for deposit, or have been deposited by the Collateral Manager, or thereafter received with respect to the Collateral and the delivery to the Successor Collateral Manager in an orderly and timely fashion of all files and records with respect to the Collateral and a computer data file in readable form containing all information necessary to enable the Successor Collateral Manager to service the Collateral. In addition, the Collateral Manager agrees to cooperate and use its commercially reasonable efforts in providing, at the expense of the Collateral Manager, the Successor Collateral Manager with reasonable access (including at the premises of the Collateral Manager) to the employees of the Collateral Manager, and any and all of the responsibilitiesbooks, duties records (in electronic or other form) or other information reasonably requested by it to enable the Successor Collateral Manager to assume the servicing functions hereunder and under this Agreement and to maintain a list of key servicing personnel and contact information.
(c) Notwithstanding the Successor Collateral Manager’s assumption of, and its agreement to perform and observe, all duties, responsibilities and obligations of the Collateral Manager under this Agreement arising on and after the Indenture; (iii) its appointment would Assumption Date, the Successor Collateral Manager shall not cause be deemed to have assumed or result in the Issuer becomingto become liable for, or require otherwise have any liability for, any duties, responsibilities, obligations or liabilities of the pool of Assets to be registered as, an investment company initial Collateral Manager or any other predecessor Collateral Manager arising under the Investment Company Act; and (iv) the Rating Agency has been notified terms of such Successor Manager. For the avoidance this Agreement, arising by operation of doubt, Collateral Manager Notes will be disregarded and have no voting rights law or otherwise with respect to the period ending on the Assumption Date, including, without limitation, any vote in respect of liability for, any duties, responsibilities, obligations or liabilities of the following actions: (i) initial Collateral Manager or any other predecessor Collateral Manager arising on or before the removal Assumption Date under this Agreement, regardless of when the liability, duty, responsibility or obligation of the initial Collateral Manager as a result or any other predecessor Collateral Manager therefor arose, whether provided by the terms of Cause and (ii) the waiver this Agreement arising by operation of any event constituting Causelaw or otherwise, and in no case will the Successor Collateral Manager have any liability for any failure to perform its duties as Collateral Manager, or any loss or damages arising from such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionfailure, if that results from the Notes actions (or inaction) of the Controlling Class or the Subordinated Notes consist entirely of initial Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of or any other predecessor Collateral Manager Notes, disregarding any on or before the Assumption Date.
(d) The Successor Collateral Manager Notes. No compensation payable undertakes to a successor Collateral Manager from payments on the Collateral will be greater than that permitted to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) perform only such duties and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified obligations as are specifically set forth in this Agreement, it being expressly understood by all authority parties hereto that there are no implied duties or obligations of the Successor Collateral Manager hereunder.
(e) Notwithstanding anything contained in this Agreement or any Facility Document to the contrary, the Successor Collateral Manager is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Collateral Manager relating to the Collateral Loans (collectively, the “Predecessor Collateral Manager Work Product”) without any audit or other examination thereof, except to the extent that it knows such records or work product to be incorrect, and such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Collateral Manager or any other predecessor Collateral Manager. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral Manager Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use commercially reasonable efforts to prevent further Continued Errors. In the event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Administrative Agent, use its commercially reasonable efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Collateral Manager shall be entitled to recover its costs thereby expended in accordance with the Priority of Payments.
(f) The Collateral Manager will, upon the request of the Successor Collateral Manager, provide the Successor Collateral Manager with a power of attorney providing that the Successor Collateral Manager is authorized and empowered to execute and deliver, on behalf of the Collateral Manager, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do so or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Collateral Manager under this Agreement.
(g) The Successor Collateral Manager shall not be liable for an action or omission to act hereunder, whether with respect except for its own willful misconduct, gross negligence or bad faith. Under no circumstances will the Successor Collateral Manager be liable for indirect, special, consequential or incidental damages, such as loss of use, revenue or profit. In no event shall the Successor Collateral Manager be liable to the Assets Borrower for any bad debts or otherwiseother defaults by Obligors.
(h) Except as set forth herein, will automatically and without action by the Successor Collateral Manager shall have no duty to review any Person pass information regarding the Collateral Manager, including any financial statements or the information set forth herein.
(i) If the Successor Collateral Manager is prevented from fulfilling its obligations hereunder as a result of government actions, regulations, fires, strikes, accidents, acts of God or other causes beyond the control of such party, the Successor Collateral Manager shall use commercially reasonable efforts to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer resume performance as soon as reasonably possible, and the successor will take Successor Collateral Manager’s obligations shall be suspended for a reasonable time during which such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionconditions exist.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Appointment of Successor Collateral Manager. Notwithstanding the provisions of Section 11, no resignation or removal of the Collateral Manager or termination of this Agreement shall become effective until the acceptance of appointment by a successor Collateral Manager (the "Successor Manager"a) satisfying the Successor Criteria described below and notice of which has been given to the Rating Agency. Within 30 days after the removal or Upon resignation of the Collateral Manager pursuant to Section 11.08, the Borrower may (with the consent of the Administrative Agent and the Required Lenders) at any time appoint a successor collateral manager (the "“Successor Collateral Manager”), which, for the avoidance of doubt may be the Administrative Agent or any Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. Upon the occurrence and continuance of a Collateral Manager Termination Date"Event, the Administrative Agent may (with the consent of the Required Lenders and, in the case of a Collateral Manager Termination Event arising solely under Section 6.03(a), by written notice to with the Issuer and the Trustee, the Holders of a Majority consent of the Subordinated Notes (Collateral Manager Notes will not be disregarded for this purposeBorrower) may propose at any time appoint a Successor Manager. The Issuer will appoint such Successor Manager if it satisfies the Successor Criteria, subject to the approval of the Holders of a Majority of the Controlling Class. If no Successor Manager has been selected within 60 days of the Manager Termination Date, the Issuer, the resigning Collateral Manager, which, for the Trustee avoidance of doubt may be the Administrative Agent or any Holder Lender, and such Successor Collateral Manager shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. No assignment of Notes may petition this Agreement by the Collateral Manager (including, without limitation, a court change in control or management of competent jurisdiction for the appointment Collateral Manager which would be deemed an “assignment” under the Investment Advisers Act of 1940, as amended) shall be made unless such assignment is consented to in writing by the Borrower and the Administrative Agent, provided, however, that nothing herein shall be construed to restrict the ability of the Administrative Agent to replace the Collateral Manager upon the occurrence of a Successor Collateral Manager that satisfies Termination Event pursuant to this Section 11.09 or any obligations of the Collateral Manager in connection with such provisions.
(b) Upon its appointment (the “Assumption Date”), the Successor Criteria. A Collateral Manager shall be the successor in all respects to the Collateral Manager with respect to collateral management functions under this Agreement subject to and in accordance with the terms of this Agreement (including without limitation Article XIII hereof) and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Collateral Manager by the terms and provisions hereof, and all references in this Agreement to the Collateral Manager shall be deemed to refer to the Successor Collateral Manager; provided that the Successor Collateral Manager will satisfy the "Successor Criteria" if: shall not (i) be deemed to have assumed or to become liable for, or otherwise have any liability for, any duties, responsibilities, actions performed, breaches, defaults, claims, obligations or liabilities of the terminated Collateral Manager or any other predecessor Collateral Manager arising before the Assumption Date, (ii) have any obligation to pay any taxes required to be paid by the terminated Collateral Manager or any other predecessor Collateral Manager (provided that the Successor Collateral Manager has demonstrated an ability shall pay any income taxes for which it is liable), (iii) have any liability for any failure to professionally perform its duties as Collateral Manager, or any loss or damages arising from such failure, that results from the actions (or inaction) of the terminated Collateral Manager or any other predecessor Collateral Manager on or before the Assumption Date, (iv) have any obligation to perform advancing or repurchase obligations, if any, of the Borrower, the terminated Collateral Manager or any other predecessor Collateral Manager unless it elects to do so in its sole discretion, (v) have any obligation to pay any of the fees and competently perform duties similar expenses of any other party to those imposed upon the transaction contemplated by this Agreement or any Facility Document, (vi) have any liability with respect to any of the representations and warranties of any predecessor Collateral Manager under this Agreement; , (iivii) have any obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder or in the exercise of any of its rights and powers, if, in its reasonable judgment, it shall believe that repayment of such funds or adequate indemnity against such risk or liability is not assured to it and (viii) have any obligation to file or record any Financing Statements or other documents in order to perfect or continue any security interests contemplated by this Agreement unless it has been directed by the Administrative Agent to make such filing or recordation. The indemnification obligations of the Successor Manager is legally qualified and has the capacity Collateral Manager, upon becoming a Successor Collateral Manager, are expressly limited to those arising on account of its failure to act as in good faith and with reasonable care under the circumstances.
(c) The Collateral Manager agrees to cooperate and has agreed use its commercially reasonable efforts in writing effecting the transition of the responsibilities and rights of servicing of the Collateral, including, without limitation, the transfer to assume the Successor Collateral Manager for the administration by it of all cash amounts that shall at the time be held by the Collateral Manager for deposit, or have been deposited by the Collateral Manager, or thereafter received with respect to the Collateral and the delivery to the Successor Collateral Manager in an orderly and timely fashion of all files and records with respect to the Collateral and a computer data file in readable form containing all information necessary to enable the Successor Collateral Manager to service the Collateral. In addition, the Collateral Manager agrees to cooperate and use its commercially reasonable efforts in providing, at the expense of the Collateral Manager, the Successor Collateral Manager with reasonable access (including at the premises of the Collateral Manager) to the employees of the Collateral Manager, and any and all of the responsibilitiesbooks, duties records (in electronic or other form) or other information reasonably requested by it to enable the Successor Collateral Manager to assume the servicing functions hereunder and under this Agreement and to maintain a list of key servicing personnel and contact information.
(d) Notwithstanding the Successor Collateral Manager’s assumption of, and its agreement to perform and observe, all duties, responsibilities and obligations of the Collateral Manager under this Agreement arising on and after the Indenture; (iii) its appointment would Assumption Date, the Successor Collateral Manager shall not cause be deemed to have assumed or result in the Issuer becomingto become liable for, or require otherwise have any liability for, any duties, responsibilities, obligations or liabilities of the pool of Assets to be registered as, an investment company initial Collateral Manager or any other predecessor Collateral Manager arising under the Investment Company Act; and (iv) the Rating Agency has been notified terms of such Successor Manager. For the avoidance this Agreement, arising by operation of doubt, Collateral Manager Notes will be disregarded and have no voting rights law or otherwise with respect to the period ending on the Assumption Date, including, without limitation, any vote in respect of liability for, any duties, responsibilities, obligations or liabilities of the following actions: (i) initial Collateral Manager or any other predecessor Collateral Manager arising on or before the removal Assumption Date under this Agreement, regardless of when the liability, duty, responsibility or obligation of the initial Collateral Manager as a result or any other predecessor Collateral Manager therefor arose, whether provided by the terms of Cause and (ii) the waiver this Agreement arising by operation of any event constituting Causelaw or otherwise, and in no case will the Successor Collateral Manager have any liability for any failure to perform its duties as Collateral Manager, or any loss or damages arising from such Notes will be deemed not to be Outstanding in connection with any such vote. For any such actionfailure, if that results from the Notes actions (or inaction) of the Controlling Class or the Subordinated Notes consist entirely of initial Collateral Manager Notes, such action must be undertaken by the required percentage of the most senior Class of Notes that is not comprised entirely of or any other predecessor Collateral Manager Notes, disregarding any on or before the Assumption Date.
(e) The Successor Collateral Manager Notes. No compensation payable undertakes to a successor Collateral Manager from payments on the Collateral will be greater than that permitted to the Collateral Manager under this Agreement without (a) the prior written consent of a Majority of each Class of Notes (each Class voting separately) perform only such duties and (b) prior notice to the Rating Agency. Upon expiration of the applicable notice periods with respect to termination specified obligations as are specifically set forth in this Agreement, it being expressly understood by all authority parties hereto that there are no implied duties or obligations of the Successor Collateral Manager hereunder.
(f) Notwithstanding anything contained in this Agreement or any Facility Document to the contrary, the Successor Collateral Manager is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Collateral Manager relating to the Collateral Loans (collectively, the “Predecessor Collateral Manager Work Product”) without any audit or other examination thereof, except to the extent that it knows such records or work product to be incorrect, and such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Collateral Manager or any other predecessor Collateral Manager. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Collateral Manager Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Collateral Manager making or continuing any Errors (collectively, “Continued Errors”), such Successor Collateral Manager shall have no duty, responsibility, obligation or liability for such Continued Errors; provided that such Successor Collateral Manager agrees to use commercially reasonable efforts to prevent further Continued Errors. In the event that the Successor Collateral Manager becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Administrative Agent, use its commercially reasonable efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Collateral Manager shall be entitled to recover its costs thereby expended in accordance with the Priority of Payments.
(g) The Collateral Manager will, upon the request of the Successor Collateral Manager, provide the Successor Collateral Manager with a power of attorney providing that the Successor Collateral Manager is authorized and empowered to execute and deliver, on behalf of the Collateral Manager, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do so or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Collateral Manager under this Agreement.
(h) The Successor Collateral Manager shall not be liable for an action or omission to act hereunder, whether with respect except for its own willful misconduct, gross negligence or bad faith. Under no circumstances will the Successor Collateral Manager be liable for indirect, special, consequential or incidental damages, such as loss of use, revenue or profit. In no event shall the Successor Collateral Manager be liable to the Assets Borrower for any bad debts or otherwiseother defaults by Obligors.
(i) Except as set forth herein, will automatically and without action by the Successor Collateral Manager shall have no duty to review any Person pass information regarding the Collateral Manager, including any financial statements or the information set forth herein.
(j) If the Successor Collateral Manager is prevented from fulfilling its obligations hereunder as a result of government actions, regulations, fires, strikes, accidents, acts of God or other causes beyond the control of such party, the Successor Collateral Manager shall use commercially reasonable efforts to and be vested in the successor institution upon the acceptance by such institution of its appointment under this Agreement. The Issuer resume performance as soon as reasonably possible, and the successor will take Successor Collateral Manager’s obligations shall be suspended for a reasonable time during which such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as will be necessary to effect any such successionconditions exist.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
