Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company. (b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law. (c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular. (d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law. (e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 5 contracts
Samples: Collateral Management Agreement (Golub Capital Private Credit Fund), Collateral Management Agreement (Golub Capital BDC 3, Inc.), Collateral Management Agreement (GOLUB CAPITAL BDC, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureIndenture and the Master Loan Sale Agreement, as applicable, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture or the Master Loan Sale Agreement) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest best price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is it deems fair and equitable and over time and that the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) Policies and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a)the Collateral Manager Standard. The Issuer acknowledges and agrees that one or more Affiliates an Affiliate of the Collateral Manager will owns the Preferred Shares and may hold or beneficially own all a portion of the Outstanding Subordinated Notes Secured Debt on and potentially and, potentially, after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments investment may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularsuch Affiliate’s interests.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) this Section 3 and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client Client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation completion of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) this Section and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities Collateral Obligations of Obligors or issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law. To the extent that applicable law requires disclosure to and the consent and approval of the Issuer to any such principal transaction, such requirements may be satisfied with respect to the Issuer in any manner that is permitted pursuant to then applicable law. For the avoidance of doubt, the Collateral Manager will not undertake any cross-transaction that it determines would not be in compliance with both the Advisers Act and the 1940 Act.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securitiesAssets, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities Assets for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other termsIssuer. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Collateral Obligations and Eligible Investments included in the Assets. The Collateral Manager shall not incur any liability and shall be fully protected for any determinations made or other actions taken or omitted by it in good faith with respect to any determination of value made in accordance with the Transaction Documents. Notwithstanding the foregoing, the Collateral Manager will not undertake any such transaction that it determines would not be in compliance with both the Advisers Act and the 0000 Xxx.
Appears in 2 contracts
Samples: Collateral Management Agreement, Collateral Management Agreement (PennantPark Floating Rate Capital Ltd.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that that, none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that that, the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basisall circumstances that it considers relevant. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Collateral Manager (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time taking into consideration all circumstances that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors it considers relevant and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a)the Collateral Manager Standard. The Issuer acknowledges and agrees that the CM Purchasers are holders of certain Notes, and may purchase (directly or indirectly) the Notes of one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on Classes from time to time and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments investment(s) may give rise to conflicts of interest between the interest. The Collateral Manager’s duties to the Issuer under this Agreement and the interests Manager may remit a portion of the Collateral Manager, Management Fee received by it to one or more of the CM Purchasers or any of its Affiliates other affiliates or accounts or funds managed by it or its Related Personsaffiliates. The Issuer hereby acknowledges that various potential and actual conflicts No other beneficial owner of interest do or may exist with respect the Notes will receive any such fee remittance, nor will any such fee remittance reduce the amount of the Collateral Management Fee paid to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable lawaffiliates.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer. In the event that, in light of market conditions and investment objectives, the Collateral Manager determines that it would be advisable to acquire the same Collateral Obligation both for the Issuer as to directionand either the proprietary account of the Collateral Manager or any Affiliate of the Collateral Manager or another client of the Collateral Manager, amount, timing or other termsthe Collateral Manager will allocate the executions among the accounts in an equitable manner in accordance with the Internal Policies of the Collateral Manager. The Issuer acknowledges that the Collateral Manager and its Affiliates affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Collateral Obligations included in the Assets. The Issuer acknowledges that other funds or investment accounts managed by the Collateral Manager or any of its affiliates may require the Collateral Manager or such affiliates to apply a different valuation methodology in valuing specific investments than the valuation methodology set forth in the Transaction Documents for the Issuer. As a result of such different methodology, the value of certain investments held in such separately managed funds or accounts may differ from the value assigned to the same investments held by the Issuer under the Transaction Documents.
Appears in 2 contracts
Samples: Collateral Management Agreement (Apollo Debt Solutions BDC), Collateral Management Agreement (MidCap Financial Investment Corp)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager Parties will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes they believe to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager Parties may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that that, none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager Parties may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager Parties or its their Affiliates by brokers and dealers which are not Affiliates of the Collateral ManagerManager Parties; provided that that, the Collateral Manager Parties in good faith believes believe that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager Parties may aggregate sales and purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager Parties or with accounts of the Affiliates of the Collateral ManagerManager Parties, if in the Collateral Manager’s Manager Parties’ reasonable judgment such aggregation can be expected to shall not result in an overall economic benefit detriment to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basisall circumstances that it considers relevant. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager Parties will be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Manager Parties (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit (or lack of detriment) to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time taking into consideration all circumstances that it considers relevant, (ii) under some circumstances, such allocation may adversely affect the Issuer can be expected with respect to be benefited by relatively better purchase the price or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing size of transactions or any combination of any of these and/or other factors the positions being sold to the Issuer and (iiiii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a)) herein. The Collateral Manager is expected to acquire all of the Subordinated Notes (including those Subordinated Notes that are not part of the U.S. Retention Interest) on the Closing Date and owns, and expects to continue to own, 100% of the membership interests in the Issuer. In addition, the Collateral Manager or any of its Affiliates may acquire Notes of the Issuer at any time for its own account. The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments investment(s) may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularinterest.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option through an unaffiliated independent review party without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer. In the event that, in light of market conditions and investment objectives, the Collateral Manager determines that it would be advisable to acquire the same Collateral Obligation both for the Issuer and either the proprietary account of the Manager Parties or another client of the Manager Parties, the Manager Parties shall allocate the executions among the accounts in an equitable manner in accordance with the Internal Policies and procedures as it and its Affiliates (including the Manager Parties and their advisory affiliates) may have in place from time to direction, amount, timing or other termstime . The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors and issuers with respect to the Collateral Obligations included in the Assets. The Issuer acknowledges that other funds or investment accounts managed by the Collateral Manager or any of its Affiliates may require the Collateral Manager or such Affiliates to apply a different valuation methodology in valuing specific investments than the valuation methodology set forth in the Transaction Documents for the Issuer. As a result of such different methodology, the value of certain investments held in such separately managed funds or accounts may differ from the value assigned to the same investments held by the Issuer under the Transaction Documents.
Appears in 2 contracts
Samples: Collateral Management Agreement (Nuveen Churchill Private Capital Income Fund), Collateral Management Agreement (Nuveen Churchill Direct Lending Corp.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureIndenture and the Master Loan Sale Agreement, as applicable, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture or the Master Loan Sale Agreement) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The To the extent required by applicable law, the Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for itself, its affiliates or other accounts managed by the Collateral Manager or with accounts of the Affiliates by affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). the Collateral Manager Standard.
(c) The Issuer acknowledges and agrees Collateral Manager may, from time to time, be presented with investment opportunities that one or more Affiliates fall within the investment objectives of the Issuer, of the Collateral Manager will hold or beneficially own all and its affiliates, of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by Clients of the Collateral Manager or its Affiliates may acquire other Notes affiliates and that of Persons with whom the Collateral Manager has entered into co-investment arrangements. In such investments may give rise circumstances, the Collateral Manager expects to conflicts of interest between allocate such opportunities among the Collateral Manager’s duties to , its affiliates, Clients of the Issuer under this Agreement Collateral Manager or its affiliates and any other Persons with whom the interests Collateral Manager has entered into any co-investment arrangement, as applicable, in accordance with the allocation policy of the Collateral Manager, its Affiliates as such policy may be amended from time to time, and on a basis that the Collateral Manager determines in good faith is appropriate taking into consideration such factors as any allocation and/or co-investment policy agreed to with any such Persons, as applicable, and the contractual and legal duties owed to such Persons, as applicable, the primary investment mandates of each, the capital available to each, any restrictions on investment applicable thereto, the sourcing of the transaction, the size of the transaction, the amount of potential follow-on investing that may be required for such investment and the other investments held by each, the relation of such opportunity to the investment strategy thereof, reasons of portfolio balance, the remaining investment or its Related Personsreinvestment period thereof and any other consideration deemed relevant by the Collateral Manager in good faith. The Issuer hereby acknowledges Collateral Manager will seek to allocate investment opportunities across the Persons for which such opportunities are appropriate in a manner that various potential is fair and actual conflicts equitable over time and consistent with (1) its internal conflict of interest do and allocation policies (as the same may be amended from time to time, the “Internal Policies”), (2) any allocation and/or co-investment policy or may exist agreement entered into with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDCany such Person, as described in this Agreement each may be amended from time to time, and in (3) the Final Offering Circularrequirements of applicable law.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the The Collateral Manager is hereby authorized to may effect client cross-transactions Transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it Client of the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction affiliates at the Issuer’s option without penalty. Such termination shall be effective upon receipt by any time that the Collateral Manager believes such Transaction to be fair to the Issuer and the other such party involved. The Collateral Manager may direct the Issuer to acquire or dispose of written notice from Collateral Obligations in trades between the IssuerIssuer and other Clients of the Collateral Manager or its affiliates in accordance with applicable contractual and regulatory requirements. Subject In such case, the Collateral Manager and such affiliates may have a potentially conflicting division of loyalties and responsibilities regarding the Issuer and the other parties to such trade. Under certain circumstances, the Collateral Manager and its affiliates may determine that it is appropriate to avoid such conflicts by purchasing or selling a Collateral Obligation at a fair value that has been calculated pursuant to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, valuation procedures to another Client of the Collateral Manager is hereby authorized to or such affiliates.
(e) The Collateral Manager may effect principal transactions and transactions Transactions where the Issuer may invest in loans and securities of Obligors or issuers in which the Collateral Manager and/or its Affiliates affiliates have a debt, equity or participation interestinterest or may acquire Collateral Obligations from the Collateral Manager or one of its affiliates, in each case in accordance with applicable law, which may include, (a) in connection with the Issuer’s purchase of Closing Date Assets on the Closing Date, the Collateral Manager obtaining the consent and approval of or on behalf of the Issuer by receiving the consent of the investors purchasing an interest in the Notes on the Closing Date as described in the section in the Final Offering Circular titled “Risk Factors—Relating to the Collateral Obligations—Related Persons; Purchase Price of Closing Date Assets and Certain Additional Collateral Obligations Prior to the Effective Date”, and (b) in connection with the Issuer’s purchase of additional Collateral Obligations after the Closing Date (other than the acquisition of any Collateral Obligation whose acquisition by the Issuer is consented to by the investors as described in clause (a)), the Collateral Manager, if required by applicable law or otherwise at its discretion, obtaining the consent and approval thereto of the Issuer or of the Independent Review Party, if any, on behalf of the Issuer, in either case prior to engaging in any such transactions between the Issuer and the Collateral Manager or its affiliates.
(ef) In addition, in the future and with the prior blanket authorization of the Issuer, which can be revoked at any time thereafter, the Collateral Manager may enter into agency cross transactions where it or any of its Affiliates acts as broker for the Issuer and for the other party to the transaction, to the extent permitted under applicable law. To the extent that any such transactions are Affiliate Transactions, the Collateral Manager shall if required by applicable law and otherwise in its discretion may obtain the written consent to such transaction of the Issuer or of the Independent Review Party appointed by the Issuer, if any. However, the Issuer will be barred from acquiring debt assets issued by Portfolio Companies.
(g) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates affiliates may acquire or sell obligations or securitiesAssets, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities Assets for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other termsIssuer. The Issuer acknowledges that that, subject to the provisions of the Indenture, the Collateral Manager and its Affiliates affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Collateral Obligations and Eligible Investments included in the Assets.
Appears in 2 contracts
Samples: Collateral Management Agreement (NewStar Financial, Inc.), Collateral Management Agreement (NewStar Financial, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek use reasonable efforts to obtain the best execution (but shall have no obligation to obtain the lowest price prices available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes in its reasonable business judgment to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by Clients of the Collateral Manager or with accounts of the Affiliates of the Collateral ManagerManager (including the Investment Adviser), if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager and its Affiliates will be to use commercially reasonable efforts to allocate the executions among the accounts Clients (including Clients of the Investment Adviser) in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Collateral Manager or the Investment Adviser (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates the Standard of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering CircularCare.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a)herein, 3(b) compliance with applicable law and 3(e) and compliance with the covenants set forth in Section 5applicable provisions of the Indenture, the Collateral Manager is hereby authorized to may effect principal transactions and transactions where with the Issuer may invest in securities of issuers in which the Collateral Manager and/or or its Affiliates have (i) on an agency basis or (ii) on a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that principal basis where the Collateral Manager or any of its Affiliates sells assets to or purchases assets from the Issuer.
(e) The Collateral Manager or any of its Affiliates (including the Investment Adviser) may acquire or sell obligations or securitiesassets, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities assets for the account of the Issuer. Such investments may be the same as or different from those made on behalf of the Issuer. In the event that, in light of market conditions and investment objectives, the Collateral Manager determines that it would be advisable to acquire the same Collateral Obligation both for the Issuer as and either the proprietary account of the Collateral Manager or any Affiliate of the Collateral Manager (including the Investment Adviser) or another Client of the Collateral Manager or the Investment Adviser, the Collateral Manager will allocate investment opportunities across such entities for which such opportunities are appropriate, consistent with (1) its internal conflict of interest and allocation policies, (2) any applicable requirements of the Advisers Act and (3) if and to directionthe extent applicable, amount, timing certain restrictions of the 1940 Act regarding co-investments with affiliates.
(f) The Issuer acknowledges and agrees that the Collateral Manager and its Affiliates (including the Investment Adviser) may invest for their own accounts or other termsfor the accounts of others in assets that would be appropriate investments for the Issuer. The Issuer acknowledges that the Collateral Manager and its Affiliates (including the Investment Adviser) may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors and issuers with respect to the Collateral Obligations included in the Assets. The Issuer understands that the Collateral Manager and its Affiliates (including the Investment Adviser) may have economic interests in (including, without limitation, controlling equity interests or other equity or debt interests), be lenders to, receive payments from, render services to, engage in transactions with or have other relationships with obligors and issuers with respect to the Collateral Obligations included in the Assets. In particular, the Collateral Manager and its Affiliates (including the Investment Adviser) may make and/or hold investments in an obligor’s or issuer’s obligations or securities that may be pari passu, senior or junior in ranking to an investment in such obligor’s or issuer’s obligations or securities made and/or held by the Issuer, or otherwise have interests different from or adverse to those of the Issuer.
Appears in 2 contracts
Samples: Collateral Management Agreement (TICC Capital Corp.), Collateral Management Agreement (TICC Capital Corp.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable lawbasis. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) Eligible Investment shall be purchased if such Assets Asset may give rise to any obligation or liability on the Issuer’s part to take any action (other than in connection with the elevation of participations to assignments) or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek use all commercially reasonable efforts to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any each Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuerconsidering all relevant circumstances. Subject to the preceding sentenceobjective of obtaining best execution, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence objective of this paragraph, obtaining best execution the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions Transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may also consider any factors it deems relevant in its sole discretion, including but not limited to the size of the Transaction, difficulty of execution, the operation facilities and reliability of the firm involved, the firm’s promptness of execution, adequacy of the firm’s trading infrastructure, technology and capital, quality of service rendered to the Collateral Manager in other transactions, confidentiality considerations, the firm’s financial stability and reputation, special execution capability, access to underwritten offerings, secondary markets and other investment opportunities, and the firm’s ability to accommodate any special execution or order handling requirements that may surround a particular Transaction. The Collateral Manager need not solicit competitive bids. The Collateral Manager may (but is not obligated to) aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment (as determined at the time of such aggregation) such aggregation can be expected to shall result in an overall economic benefit to the IssuerIssuer over time, taking into consideration all circumstances considered relevant by the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basisCollateral Manager. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager (and any of its Affiliates involved in such Transactions) will be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Barings BDC, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations Draw Loan or Revolving Collateral ObligationsLoan) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC 3, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureIndenture and the Master Loan Sale Agreement, as applicable, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture or the Master Loan Sale Agreement) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The To the extent required by applicable law, the Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for itself, its affiliates or other accounts managed by the Collateral Manager or with accounts of the Affiliates by affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). the Collateral Manager Standard.
(c) The Issuer acknowledges and agrees Collateral Manager may, from time to time, be presented with investment opportunities that one or more Affiliates fall within the investment objectives of the Issuer, of the Collateral Manager will hold or beneficially own all and its affiliates, of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by Clients of the Collateral Manager or its Affiliates may acquire other Notes affiliates and that of Persons with whom the Collateral Manager has entered into co-investment arrangements. In such investments may give rise circumstances, the Collateral Manager expects to conflicts of interest between allocate such opportunities among the Collateral Manager’s duties to , its affiliates, Clients of the Issuer under this Agreement Collateral Manager or its affiliates and any other Persons with whom the interests Collateral Manager has entered into any co-investment arrangement, as applicable, in accordance with the allocation policy of the Collateral Manager, its Affiliates as such policy may be amended from time to time, and on a basis that the Collateral Manager determines in good faith is appropriate taking into consideration such factors as any allocation and/or co-investment policy agreed to with any such Persons, as applicable, and the contractual and legal duties owed to such Persons, as applicable, the primary investment mandates of each, the capital available to each, any restrictions on investment applicable thereto, the sourcing of the transaction, the size of the transaction, the amount of potential follow-on investing that may be required for such investment and the other investments held by each, the relation of such opportunity to the investment strategy thereof, reasons of portfolio balance, the remaining investment or its Related Personsreinvestment period thereof and any other consideration deemed relevant by the Collateral Manager in good faith. The Issuer hereby acknowledges Collateral Manager will seek to allocate investment opportunities across the Persons for which such opportunities are appropriate in a manner that various potential is fair and actual conflicts equitable over time and consistent with (1) its internal conflict of interest do and allocation policies (as the same may be amended from time to time, the “Internal Policies”), (2) any allocation and/or co-investment policy or may exist agreement entered into with respect to any such Person and (3) the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularrequirements of applicable law.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 55 with respect to repurchases or substitutions, the Collateral Manager is hereby authorized to may effect client cross-transactions Transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it Client of the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction affiliates at the Issuer’s option without penalty. Such termination shall be effective upon receipt by any time that the Collateral Manager believes such Transaction to be fair to the Issuer and the other such party involved. The Collateral Manager may direct the Issuer to acquire or dispose of written notice from Collateral Obligations in trades between the IssuerIssuer and other Clients of the Collateral Manager or its affiliates in accordance with applicable contractual and regulatory requirements. Subject In such case, the Collateral Manager and such affiliates may have a potentially conflicting division of loyalties and responsibilities regarding the Issuer and the other parties to such trade. Under certain circumstances, the Collateral Manager and its affiliates may determine that it is appropriate to avoid such conflicts by purchasing or selling a Collateral Obligation at a fair value that has been calculated pursuant to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, valuation procedures to another Client of the Collateral Manager is hereby authorized to or such affiliates.
(e) The Collateral Manager may effect principal transactions and transactions Transactions where the Issuer may invest in loans and securities of Obligors or issuers in which the Collateral Manager and/or its Affiliates affiliates have a debt, equity or participation interestinterest or may acquire Collateral Obligations from the Collateral Manager or one of its affiliates, in each case in accordance with applicable law, which may include, (a) in connection with the Issuer’s purchase of Closing Date Assets on the Closing Date, the Collateral Manager obtaining the consent and approval of or on behalf of the Issuer by receiving the consent of the investors purchasing an interest in the Notes on the Closing Date as described in the section in the Final Offering Circular titled “—Related Parties, Purchase Price of Closing Date Assets and Certain Additional Collateral Obligations Prior to the Effective Date”, and (b) in connection with the Issuer’s purchase of additional Collateral Obligations after the Closing Date (other than the acquisition of any Collateral Obligation whose acquisition by the Issuer is consented to by the investors as described in clause (a)), the Collateral Manager, if required by applicable law or otherwise at its discretion, obtaining the consent and approval thereto of the Issuer or of the Independent Review Party, if any, on behalf of the Issuer, in either case prior to engaging in any such transactions between the Issuer and the Collateral Manager or its affiliates.
(ef) In addition, in the future and with the prior blanket authorization of the Issuer, which can be revoked at any time thereafter, the Collateral Manager may enter into agency cross transactions where it or any of its Affiliates acts as broker for the Issuer and for the other party to the transaction, to the extent permitted under applicable law. To the extent that any such transactions are Affiliate Transactions, the Collateral Manager shall if required by applicable law and otherwise in its discretion may obtain the written consent to such transaction of the Issuer or of the Independent Review Party appointed by the Issuer, if any. However, the Issuer will be barred from acquiring debt assets issued by Portfolio Companies.
(g) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates affiliates may acquire or sell obligations or securitiesAssets, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities Assets for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other termsIssuer. The Issuer acknowledges that the Collateral Manager and its Affiliates affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Collateral Obligations and Eligible Investments included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than then any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price prices available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by Clients of the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts Clients in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Collateral Manager (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all is the investment advisor to the Originator and is the designated manager of the Outstanding Depositor, which is the Holder of the Class B Notes and the Subordinated Notes on and potentially and, potentially, after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments which may give rise to conflicts of interest between the Collateral Manager’s 's duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect duty to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularsuch Client.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a)herein, 3(b) compliance with applicable law and 3(e) and compliance with the covenants set forth in Section 5applicable provisions of the Indenture, the Collateral Manager is hereby authorized to may effect principal transactions and transactions where with the Issuer may invest in securities of issuers in which or its Affiliates (i) on an agency basis or (ii) on a principal basis where the Collateral Manager and/or or any of its Affiliates have a debt, equity sells assets to or participation interest, in each case in accordance with applicable lawpurchases assets from the Issuer.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securitiesassets, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities assets for the account of the Issuer. Such investments may be the same as or different from those made on behalf of the Issuer. In the event that, in light of market conditions and investment objectives, the Collateral Manager determines that it would be advisable to acquire the same Collateral Obligation both for the Issuer as and either the proprietary account of the Collateral Manager or any Affiliate of the Collateral Manager or another Client of the Collateral Manager, the Collateral Manager will allocate investment opportunities across such entities for which such opportunities are appropriate, consistent with (1) its internal conflict of interest and allocation policies, (2) any applicable requirements of the Advisers Act and (3) if and to directionthe extent applicable, amount, timing certain restrictions of the 1940 Act regarding co-investments with affiliates.
(f) The Issuer acknowledges and agrees that the Collateral Manager and its Affiliates may invest for their own accounts or other termsfor the accounts of others in assets that would be appropriate investments for the Issuer. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors and issuers with respect to the Collateral Obligations included in the Assets. The Issuer understands that the Collateral Manager and its Affiliates may have economic interests in (including, without limitation, controlling equity interests or other equity or debt interests), be lenders to, receive payments from, render services to, engage in transactions with or have other relationships with obligors and issuers with respect to the Collateral Obligations included in the Assets. In particular, the Collateral Manager and its Affiliates may make and/or hold investments in an obligor’s or issuer’s obligations or securities that may be pari passu, senior or junior in ranking to an investment in such obligor’s or issuer’s obligations or securities made and/or held by the Issuer, or otherwise have interests different from or adverse to those of the Issuer. The Issuer agrees that, in the course of managing the Collateral Obligations held by the Issuer, the Collateral Manager may consider its relationships with other Clients (including obligors and issuers) and its Affiliates. The Collateral Manager may decline to make a particular investment for the Issuer in view of such relationships. In addition, individuals who are partners, managers, members, shareholders, directors, officers, employees or agents of the Collateral Manager or of one or more of its Affiliates may serve on boards of directors of, or otherwise have ongoing relationships with, such obligors and issuers. As a result, such individuals may possess information relating to obligors and issuers of Collateral Obligations that is (a) not known to or (b) known but restricted as to its use by the individuals at the Collateral Manager responsible for monitoring the Collateral Obligations and performing the other obligations of the Collateral Manager under this Agreement. Each of such ownership and other relationships may result in securities laws restrictions on transactions in such securities by the Issuer and otherwise create conflicts of interest for the Issuer. The Issuer acknowledges and agrees that, in all such instances, the Collateral Manager and its Affiliates may in their discretion make investment recommendations and decisions that may be the same as or different from those made with respect to the Issuer’s investments and they have no duty, in making or managing such investments, to act in a way that is favorable to the Issuer.
(g) The Issuer agrees that neither the Collateral Manager nor any of its Affiliates is under any obligation to offer all investment opportunities of which they become aware to the Issuer or to account to the Issuer for (or share with the Issuer or inform the Issuer of) any such transaction or any benefit received by them from any such transaction. The Issuer understands that the Collateral Manager and/or its Affiliates may have, for their own accounts or for the accounts of others, portfolios with substantially the same portfolio criteria as are applicable to the Issuer. Furthermore, the Collateral Manager and/or its Affiliates may make an investment on behalf of any Client or on their own behalf without offering the investment opportunity or making any investment on behalf of the Issuer and, accordingly, investment opportunities may not be allocated among all such Clients. The Issuer acknowledges that affirmative obligations may arise in the future, whereby the Collateral Manager and/or its Affiliates are obligated to offer certain investments to Clients before or without the Collateral Manager’s offering those investments to the Issuer. The Issuer agrees that the Collateral Manager may make investments on behalf of the Issuer in securities or obligations that it has declined to invest in or enter into for its own account, the account of any of the Collateral Manager or its Affiliates or the account of any other Client.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureIndenture and the Master Loan Sale Agreement, as applicable, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture or the Master Loan Sale Agreement) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The To the extent required by applicable law, the Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for itself, its affiliates or other accounts managed by the Collateral Manager or with accounts of the Affiliates by affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). the Collateral Manager Standard.
(c) The Issuer acknowledges and agrees Collateral Manager may, from time to time, be presented with investment opportunities that one or more Affiliates fall within the investment objectives of the Issuer, of the Collateral Manager will hold or beneficially own all and its affiliates, of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by Clients of the Collateral Manager or its Affiliates may acquire other Notes affiliates and that of Persons with whom the Collateral Manager has entered into co-investment arrangements. In such investments may give rise circumstances, the Collateral Manager expects to conflicts of interest between allocate such opportunities among the Collateral Manager’s duties to , its affiliates, Clients of the Issuer under this Agreement Collateral Manager or its affiliates and any other Persons with whom the interests Collateral Manager has entered into any co-investment arrangement, as applicable, in accordance with the allocation policy of the Collateral Manager, its Affiliates as such policy may be amended from time to time, and on a basis that the Collateral Manager determines in good faith is appropriate taking into consideration such factors as any allocation and/or co-investment policy agreed to with any such Persons, as applicable, and the contractual and legal duties owed to such Persons, as applicable, the primary investment mandates of each, the capital available to each, any restrictions on investment applicable thereto, the sourcing of the transaction, the size of the transaction, the amount of potential follow-on investing that may be required for such investment and the other investments held by each, the relation of such opportunity to the investment strategy thereof, reasons of portfolio balance, the remaining investment or its Related Personsreinvestment period thereof and any other consideration deemed relevant by the Collateral Manager in good faith. The Issuer hereby acknowledges Collateral Manager will seek to allocate investment opportunities across the Persons for which such opportunities are appropriate in a manner that various potential is fair and actual conflicts equitable over time and consistent with (1) its internal conflict of interest do and allocation policies (as the same may be amended from time to time, the “Internal Policies”), (2) any allocation and/or co-investment policy or may exist agreement entered into with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDCany such Person, as described in this Agreement each may be amended from time to time, and in (3) the Final Offering Circularrequirements of applicable law.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 55 with respect to repurchases or substitutions, the Collateral Manager is hereby authorized to may effect client cross-transactions Transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it Client of the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction affiliates at the Issuer’s option without penalty. Such termination shall be effective upon receipt by any time that the Collateral Manager believes such Transaction to be fair to the Issuer and the other such party involved. The Collateral Manager may direct the Issuer to acquire or dispose of written notice from Collateral Obligations in trades between the IssuerIssuer and other Clients of the Collateral Manager or its affiliates in accordance with applicable contractual and regulatory requirements. Subject In such case, the Collateral Manager and such affiliates may have a potentially conflicting division of loyalties and responsibilities regarding the Issuer and the other parties to such trade. Under certain circumstances, the Collateral Manager and its affiliates may determine that it is appropriate to avoid such conflicts by purchasing or selling a Collateral Obligation at a fair value that has been calculated pursuant to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, valuation procedures to another Client of the Collateral Manager is hereby authorized to or such affiliates.
(e) The Collateral Manager may effect principal transactions and transactions Transactions where the Issuer may invest in loans and securities of Obligors or issuers in which the Collateral Manager and/or its Affiliates affiliates have a debt, equity or participation interestinterest or may acquire Collateral Obligations from the Collateral Manager or one of its affiliates, in each case in accordance with applicable law, which may include, (a) in connection with the Issuer’s purchase of Closing Date Assets on the Closing Date, the Collateral Manager obtaining the consent and approval of or on behalf of the Issuer by receiving the consent of the investors purchasing an interest in the Notes on the Closing Date as described in the section in the Final Offering Circular titled “Risk Factors—Relating to the Collateral Obligations—Related Parties, Purchase Price of Closing Date Assets and Certain Additional Collateral Obligations Prior to the Effective Date”, and (b) in connection with the Issuer’s purchase of additional Collateral Obligations after the Closing Date (other than the acquisition of any Collateral Obligation whose acquisition by the Issuer is consented to by the investors as described in clause (a)), the Collateral Manager, if required by applicable law or otherwise at its discretion, obtaining the consent and approval thereto of the Issuer or of the Independent Review Party, if any, on behalf of the Issuer, in either case prior to engaging in any such transactions between the Issuer and the Collateral Manager or its affiliates.
(ef) In addition, in the future and with the prior blanket authorization of the Issuer, which can be revoked at any time thereafter, the Collateral Manager may enter into agency cross transactions where it or any of its Affiliates acts as broker for the Issuer and for the other party to the transaction, to the extent permitted under applicable law. To the extent that any such transactions are Affiliate Transactions, the Collateral Manager shall if required by applicable law and otherwise in its discretion may obtain the written consent to such transaction of the Issuer or of the Independent Review Party appointed by the Issuer, if any. However, the Issuer will be barred from acquiring debt assets issued by Portfolio Companies.
(g) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates affiliates may acquire or sell obligations or securitiesAssets, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities Assets for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other termsIssuer. The Issuer acknowledges that the Collateral Manager and its Affiliates affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Collateral Obligations and Eligible Investments included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price prices available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that Manager and furnished, in the Collateral Manager in Manager’s good faith believes that the compensation for such services rendered by such brokers and dealers complies belief, in compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”)) or, or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) is not availableapplicable, in compliance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth therein. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by Clients of the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets or opportunity for sale on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts Clients in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Collateral Manager (as such the same may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a2(b). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on on, and potentially after after, the Closing Date and that accounts advised or sub-advised by Date, the Collateral Manager or its Affiliates will be the Holder of a portion of the Class A-1T Notes, all of the Class C Notes and all of the Subordinated Notes, and that at any time the Collateral Manager, Affiliates thereof or Clients of the Collateral Manager may acquire other Notes and that such investments classes of Notes, which may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and its duty to such Client. Any such Holder of Notes may dispose of such Notes at any time, except to the interests extent such Holder has agreed to retain any such Notes pursuant to the Retention Letter; provided that the Subordinated Notes may only be transferred if the Collateral Manager provides an Officer’s certificate or Opinion of Counsel that the Collateral Manager will be in compliance with the registration requirements of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect Investment Advisers Act after giving effect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularsuch transfer.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in herein, including, without limitation, Sections 3(a5(c) and 5(d), 3(b) compliance with applicable law and 3(e) and compliance with the covenants set forth in Section 5applicable provisions of the Indenture, the Collateral Manager is hereby authorized to may effect principal transactions and transactions where with the Issuer may invest in securities of issuers in which the Collateral Manager and/or or its Affiliates have (i) on an agency basis or (ii) on a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that principal basis where the Collateral Manager or any of its Affiliates may acquire sells assets to or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of purchases assets from the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Garrison Capital Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it Manager shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) overall terms for all orders placed with respect to any Transactionthe Assets that are Securities (which, in a manner permitted for the avoidance of doubt, will not include Loans originated or acquired by law and in a manner it believes to be in the best interests Seller or an Affiliate of the IssuerSeller), considering all reasonable circumstances, including, if applicable, the conditions or terms of early redemption of the Securities, it being understood that the Collateral Manager has no obligation to obtain the lowest prices available. Subject to the preceding sentenceforegoing objective, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, take into consideration all factors the Collateral Manager mayreasonably determines to be relevant, in the allocation of businessincluding, take into consideration without limitation, timing, general relevant trends and research and other brokerage services and support equipment and services related thereto furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934or, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) of the Exchange Act is not availableapplicable, in accordance with the amount of the spread charged is reasonable in relation to the value of the research provisions set forth herein and other brokerage services providedrelevant factors. Such services may be used by the Collateral Manager in connection with its the other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective operations of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time and/or its Affiliates. In addition, the Collateral Manager believesmay take into account available prices, rates of brokerage commissions and size and difficulty of the order, in its reasonable business judgmentaddition to other relevant factors (such as, without limitation, execution capabilities, reliability (based on total trading rather than individual trading), integrity, financial condition in general, execution and operational capabilities of competing brokers and/or dealers, and the value of the ongoing relationship with such brokers and/or dealers), without having to be appropriate and demonstrate that such factors are of a direct benefit to the Issuer in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) any specific transaction. The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be is subjective and will represent represents the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses commissions and beneficial timing of transactions or any a combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in good faith, and in accordance with Section 2(athe Collateral Manager Servicing Standard (to the extent applicable), and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. The Issuer acknowledges Collateral Manager may aggregate sales and agrees that one purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or more with accounts of the Affiliates of the Collateral Manager if in the Collateral Manager’s reasonable judgment, exercised in good faith, such aggregation will hold not have an adverse effect on the Issuer. When any such aggregate sales or beneficially own all purchase orders occur, the objective of the Outstanding Subordinated Notes on Collateral Manager (and potentially after any of its Affiliates involved in such transactions) shall be to allocate the Closing Date executions among the accounts in a manner fair and that equitable to all such accounts advised or sub-advised and generally to seek to allocate securities available for investment to all such accounts pro rata in proportion to the optimum amount sought by the Collateral Manager for each respective account. In connection with the foregoing, the objective of the Collateral Manager shall be to allocate investment opportunities and the purchases or its Affiliates may acquire other Notes and that such investments may give rise to conflicts sales of interest between instruments in a manner believed by the Collateral Manager, in good faith, taking into account the Collateral Manager’s duties Servicing Standard (to the Issuer under this Agreement extent applicable), to be fair and equitable. In connection with any purchase of Assets other than Securities, the interests objective of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect Manager shall be to the Collateral Manager, including in its capacity as investment adviser for both the Issuer allocate such Assets (and the BDC, as described in this Agreement and in the Final Offering Circular.
(daggregate purchase price paid for such Assets) Subject to compliance with applicable laws and regulations and subject to the Indenture and among the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at clients (including the Issuer’s option without penalty. Such termination shall be effective upon receipt ) in a manner believed by the Collateral Manager of written notice from the Issuerto be fair and equitable. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager shall be fully protected with respect to any such allocation to the extent the Collateral Manager acts in good faith, taking into account the Collateral Manager’s Servicing Standard (to the extent applicable), and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. All purchases and sales of Eligible Investments and Collateral Obligations by the Collateral Manager on behalf of the Issuer shall be conducted in compliance with all applicable laws (including, without limitation, Section 206(3) of the Advisers Act) and the terms of the Indenture. After (and excluding) the Closing Date, the Collateral Manager shall cause any purchase or sale of any Collateral Obligation or Eligible Investment to be conducted on an arm’s-length basis or, if applicable, in compliance with Section 3(b) hereof. The parties hereto acknowledge and agree that all purchases (including, without limitation, purchases from Affiliates of the Collateral Manager) of Eligible Investments and Collateral Obligations by the Collateral Manager on behalf of the Issuer on the Closing Date (including, without limitation, all such purchases from Affiliates of the Collateral Manager) in a manner contemplated by the final Offering Memorandum, dated December 20, 2006 (the “Offering Memorandum”), related to the Classes of Notes offered thereby (or any supplement thereto) are hereby approved.
(b) The Collateral Manager, subject to and in accordance with the Indenture, may effect direct trades between the Issuer and the Collateral Manager or any of its Affiliates may acquire acting as principal or sell obligations or securitiesagent (any such transaction, for its own account or for a “Related Party Trade”); provided, however, that a Related Party Trade after (and excluding) the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments Closing Date may be effected only if the same or different from those made on behalf purchase price in respect of any Collateral Obligation acquired by the Issuer as from a Seller pursuant to directionsuch a direct trade may not exceed the Principal Balance thereof plus accrued and unpaid interest thereon (or, amountin the case of a Preferred Equity Security, timing all accrued and unpaid dividends or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect distributions not attributable to the Collateral Obligations included in the Assetsreturn of capital by its governing documents).
Appears in 1 contract
Samples: Collateral Management Agreement (Capitalsource Inc)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureIndenture and the Master Loan Sale Agreement, as applicable, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture or the Master Loan Sale Agreement) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The To the extent required by applicable law, the Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for itself, its affiliates or other accounts managed by the Collateral Manager or with accounts of the Affiliates by affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). the Collateral Manager Standard.
(c) The Issuer acknowledges and agrees Collateral Manager may, from time to time, be presented with investment opportunities that one or more Affiliates fall within the investment objectives of the Issuer, of the Collateral Manager will hold or beneficially own all and its affiliates, of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by Clients of the Collateral Manager or its Affiliates may acquire other Notes affiliates and that of Persons with whom the Collateral Manager has entered into co-investment arrangements. In such investments may give rise circumstances, the Collateral Manager expects to conflicts of interest between allocate such opportunities among the Collateral Manager’s duties to , its affiliates, Clients of the Issuer under this Agreement Collateral Manager or its affiliates and any other Persons with whom the interests Collateral Manager has entered into any co-investment arrangement, as applicable, in accordance with the allocation policy of the Collateral Manager, its Affiliates as such policy may be amended from time to time, and on a basis that the Collateral Manager determines in good faith is appropriate taking into consideration such factors as any allocation and/or co-investment policy agreed to with any such Persons, as applicable, and the contractual and legal duties owed to such Persons, as applicable, the primary investment mandates of each, the capital available to each, any restrictions on investment applicable thereto, the sourcing of the transaction, the size of the transaction, the amount of potential follow-on investing that may be required for such investment and the other investments held by each, the relation of such opportunity to the investment strategy thereof, reasons of portfolio balance, the remaining investment or its Related Personsreinvestment period thereof and any other consideration deemed relevant by the Collateral Manager in good faith. The Issuer hereby acknowledges Collateral Manager will seek to allocate investment opportunities across the Persons for which such opportunities are appropriate in a manner that various potential is fair and actual conflicts equitable over time and consistent with (1) its internal conflict of interest do and allocation policies (as the same may be amended from time to time, the “Internal Policies”), (2) any allocation and/or co-investment policy or may exist agreement entered into with respect to any such Person and (3) the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularrequirements of applicable law.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 55 with respect to repurchases or substitutions, the Collateral Manager is hereby authorized to may effect client cross-transactions Transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it Client of the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction affiliates at the Issuer’s option without penalty. Such termination shall be effective upon receipt by any time that the Collateral Manager believes such Transaction to be fair to the Issuer and the other such party involved. The Collateral Manager may direct the Issuer to acquire or dispose of written notice from Collateral Obligations in trades between the IssuerIssuer and other Clients of the Collateral Manager or its affiliates in accordance with applicable contractual and regulatory requirements. Subject In such case, the Collateral Manager and such affiliates may have a potentially conflicting division of loyalties and responsibilities regarding the Issuer and the other parties to such trade. Under certain circumstances, the Collateral Manager and its affiliates may determine that it is appropriate to avoid such conflicts by purchasing or selling a Collateral Obligation at a fair value that has been calculated pursuant to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, valuation procedures to another Client of the Collateral Manager is hereby authorized to or such affiliates.
(e) The Collateral Manager may effect principal transactions and transactions Transactions where the Issuer may invest in loans and securities of Obligors or issuers in which the Collateral Manager and/or its Affiliates affiliates have a debt, equity or participation interestinterest or may acquire Collateral Obligations from the Collateral Manager or one of its affiliates, in each case in accordance with applicable law.
, which may include, (ea) The Issuer acknowledges and agrees that in connection with the Issuer’s purchase of Closing Date Assets on the Closing Date, the Collateral Manager obtaining the consent and approval of or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that by receiving the Collateral Manager and its Affiliates may enter into, for their own accounts or for consent of the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included investors purchasing an interest in the Assets.Notes on the Closing Date as described in the section in the Final Offering Circular titled “—Related Parties,
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction by it, on behalf of the Issuer, to be conducted on terms and conditions negotiated on an arm’s-arm’s length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Companybasis.
(b) The Collateral Manager will seek Manager, in its sole discretion, shall use reasonable efforts to obtain the best execution (taking into account all relevant circumstances including, without limitation, best price but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law . In pursuit of the objective of obtaining the best execution as described above and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentenceaccordance with applicable law, the Collateral Manager maymay take into consideration all factors it deems relevant, in including, without limitation, price, the allocation of business, select brokers and/or dealers with whom to effect trades on behalf size of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none Transaction, the nature of the Assets may be credited tomarket for such security, held in or subject to the lien time constraints of the Transaction, general market trends, the reputation and experience of the broker or dealer with respect to any such account. In additioninvolved, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration and research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934Act, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of extent applicable to the research and other brokerage services providedsubject Transaction. Such services may be used by the Collateral Manager or its Affiliates in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders of obligations (or forms of indebtedness including, without limitation, instruments, which are not “obligations” (collectively, along with any obligations, being referred to as “Traded Obligations”)) placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to would result in an overall economic benefit to the Issuer, taking into consideration the advantageous availability of purchasers or sellers, the selling or purchase price, brokerage commission or and other expenses. The Issuer hereby acknowledges that (i) the determination of any such economic benefit by the Collateral Manager is subjective and represents the Collateral Manager’s evaluation at the time that the Issuer will be benefited by relatively better purchase or sales prices, as well as lower commission expenses or beneficial timing of Transactions or a combination of these and other factors and (ii) the availability of Collateral Manager shall be protected with respect to any such Assets on any other basisdetermination to the extent the Collateral Manager acts in accordance with Section 2(b). In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When the event that a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will (and any of its Affiliates involved in such Transactions) shall be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is reasonably believed by the Collateral Manager in its discretion to be fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable lawfor all accounts involved.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit Subject to the Issuer will be subjective provisions of Section 3(a) and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected Section 5 and to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(aSection 3(b), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to execute so much or all of the Transactions for the Issuer’s account with or through itself or any of its Affiliates as agent or as principal as the Collateral Manager in its sole discretion shall determine, and may execute Transactions in which the Collateral Manager, its Affiliates and/or their personnel have interests as described in Section 4. In all such dealings, the Collateral Manager and any of its Affiliates shall be authorized and entitled to retain any commissions, remuneration or profits which may be made in such Transactions and shall not be liable to account for the same to the Issuer, and the Collateral Manager’s fees as set forth in Section 8 shall not be abated thereby. The Issuer authorizes the Collateral Manager to effect Transactions subject to applicable provisions of Section 11(a) of the Exchange Act, and Rule 11a2-2(T) thereunder (or any similar rule which may be adopted in the future), and, to the extent such section, regulation or rule applies to the Collateral Manager, the Collateral Manager will use its best efforts to provide the Issuer with information annually disclosing commissions, if any, retained by the Collateral Manager’s Affiliates in connection with exchange Transactions for the Issuer’s account. The Collateral Manager and its Affiliates are hereby authorized to execute client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that. Such cross-transactions enable the Collateral Manager to purchase or sell a block of obligations for the Issuer’s account at a set price and possibly avoid an unfavorable price movement that may be created through entrance into the market with such purchase or sell order. The Collateral Manager believes that such Transactions can provide meaningful benefits for its clients, if and neither the Collateral Manager nor its Affiliates will receive any compensation for effecting such Transactions (other than investment management or advisory fees). In addition, the Collateral Manager may enter into agency cross-transactions where the Collateral Manager or an Affiliate of the Collateral Manager acts as broker for both the Issuer and the other party to the extent required by Transaction. In such a Transaction, the Advisers ActCollateral Manager has a potentially conflicting division of loyalties and responsibilities regarding both parties to the Transaction and the Collateral Manager, or any of its Affiliates, may receive commissions from both parties to such Transaction. The Issuer authorizes the Collateral Manager to execute such cross-transactions for the Issuer’s account and the Issuer understands that such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be , effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Palmer Square Capital BDC Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureIndenture and the Master Loan Sale Agreement, as applicable, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture or the Master Loan Sale Agreement) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest best price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is it deems fair and equitable and over time and that the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) Policies and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a)the Collateral Manager Standard. The Issuer acknowledges and agrees that one or more Affiliates an Affiliate of the Collateral Manager will owns the Subordinated Notes and may hold or beneficially own all a portion of the Outstanding Subordinated Notes Secured Debt on and potentially and, potentially, after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments investment may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularsuch Affiliate’s interests.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) this Section 3 and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client Client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation completion of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) this Section and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities Collateral Obligations of Obligors or issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law. To the extent that applicable law requires disclosure to and the consent and approval of the Issuer to any such principal transaction, such requirements may be satisfied with respect to the Issuer in any manner that is permitted pursuant to then applicable law. For the avoidance of doubt, the Collateral Manager will not undertake any cross-transaction that it determines would not be in compliance with both the Advisers Act and the Investment Company Act.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securitiesAssets, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities Assets for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other termsIssuer. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Collateral Obligations and Eligible Investments included in the Assets. The Collateral Manager shall not incur any liability and shall be fully protected for any determinations made or other actions taken or omitted by it in good faith with respect to any determination of value made in accordance with the Transaction Documents. Notwithstanding the foregoing, the Collateral Manager will not undertake any such transaction that it determines would not be in compliance with both the Advisers Act and the Investment Company Act.
Appears in 1 contract
Samples: Collateral Management Agreement (PennantPark Floating Rate Capital Ltd.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureIndenture and the Master Loan Sale Agreement, as applicable, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture or the Master Loan Sale Agreement) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The To the extent required by applicable law, the Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for itself, its affiliates or other accounts managed by the Collateral Manager or with accounts of the Affiliates by affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). the Collateral Manager Standard.
(c) The Issuer acknowledges and agrees Collateral Manager may, from time to time, be presented with investment opportunities that one or more Affiliates fall within the investment objectives of the Issuer, of the Collateral Manager will hold or beneficially own all and its affiliates, of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by Clients of the Collateral Manager or its Affiliates may acquire other Notes affiliates and that of Persons with whom the Collateral Manager has entered into co-investment arrangements. In such investments may give rise circumstances, the Collateral Manager expects to conflicts of interest between allocate such opportunities among the Collateral Manager’s duties to , its affiliates, Clients of the Issuer under this Agreement Collateral Manager or its affiliates and any other Persons with whom the interests Collateral Manager has entered into any co-investment arrangement, as applicable, in accordance with the allocation policy of the Collateral Manager, its Affiliates as such policy may be amended from time to time, and on a basis that the Collateral Manager determines in good faith is appropriate taking into consideration such factors as any allocation and/or co-investment policy agreed to with any such Persons, as applicable, and the contractual and legal duties owed to such Persons, as applicable, the primary investment mandates of each, the capital available to each, any restrictions on investment applicable thereto, the sourcing of the transaction, the size of the transaction, the amount of potential follow-on investing that may be required for such investment and the other investments held by each, the relation of such opportunity to the investment strategy thereof, reasons of portfolio balance, the remaining investment or its Related Personsreinvestment period thereof and any other consideration deemed relevant by the Collateral Manager in good faith. The Issuer hereby acknowledges Collateral Manager will seek to allocate investment opportunities across the Persons for which such opportunities are appropriate in a manner that various potential is fair and actual conflicts equitable over time and consistent with (1) its internal conflict of interest do and allocation policies (as the same may be amended from time to time, the “Internal Policies”), (2) any allocation and/or co-investment policy or may exist agreement entered into with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDCany such Person, as described in this Agreement each may be amended from time to time, and in (3) the Final Offering Circularrequirements of applicable law.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 55 with respect to repurchases or substitutions, the Collateral Manager is hereby authorized to may effect client cross-transactions cross Transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it Client of the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction affiliates at the Issuer’s option without penalty. Such termination shall be effective upon receipt by any time that the Collateral Manager believes such Transaction to be fair to the Issuer and the other such party involved. The Collateral Manager may direct the Issuer to acquire or dispose of written notice from Collateral Obligations in trades between the IssuerIssuer and other Clients of the Collateral Manager or its affiliates in accordance with applicable contractual and regulatory requirements. Subject In such case, the Collateral Manager and such affiliates may have a potentially conflicting division of loyalties and responsibilities regarding the Issuer and the other parties to such trade. Under certain circumstances, the Collateral Manager and its affiliates may determine that it is appropriate to avoid such conflicts by purchasing or selling a Collateral Obligation at a fair value that has been calculated pursuant to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, valuation procedures to another Client of the Collateral Manager is hereby authorized to or such affiliates.
(e) The Collateral Manager may effect principal transactions and transactions Transactions where the Issuer may invest in loans and securities of Obligors or issuers in which the Collateral Manager and/or its Affiliates affiliates have a debt, equity or participation interestinterest or may acquire Collateral Obligations from the Collateral Manager or one of its affiliates, in each case in accordance with applicable law.
, which may include, (ea) The Issuer acknowledges and agrees that in connection with the Issuer’s purchase of Closing Date Assets on or before the Closing Date, the Collateral Manager obtaining the consent and approval of or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that by receiving the Collateral Manager and its Affiliates may enter into, for their own accounts or for consent of the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included investors purchasing an interest in the Assets.Notes on the Closing Date as described in the section in the Final Offering Circular titled “—Related Parties;
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it Manager shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) overall terms for all orders placed with respect to any Transactionthe Assets, in a manner permitted by law and in a manner it believes to be in considering all reasonable circumstances, including, if applicable, the best interests conditions or terms of early redemption of the IssuerSecurities, it being understood that the Collateral Manager has no obligation to obtain the lowest prices available. Subject to the preceding sentenceforegoing objective, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, take into consideration all factors the Collateral Manager mayreasonably determines to be relevant, in the allocation of businessincluding, take into consideration without limitation, timing, general relevant trends and research and other brokerage services and support equipment and services related thereto furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934or, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) of the Exchange Act is not availableapplicable, in accordance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth herein. Such services may be used by the Collateral Manager in connection with its the other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective operations of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time and/or its Affiliates. In addition, the Collateral Manager believesmay take into account available prices, rates of brokerage commissions and size and difficulty of the order, in its reasonable business judgmentaddition to other relevant factors (such as, without limitation, execution capabilities, reliability (based on total trading rather than individual trading), integrity, financial condition in general, execution and operational capabilities of competing brokers and/or dealers, and the value of the ongoing relationship with such brokers and/or dealers), without having to be appropriate and demonstrate that such factors are of a direct benefit to the Issuer in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) any specific transaction. The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be is subjective and will represent represents the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses commissions and beneficial timing of transactions or any a combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in good faith, and in accordance with Section 2(athe Collateral Manager Servicing Standard (to the extent applicable), and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. The Issuer acknowledges Collateral Manager may aggregate sales and agrees that one purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or more with accounts of the Affiliates of the Collateral Manager if in the Collateral Manager’s sole judgment, exercised in good faith, such aggregation will hold not have an adverse effect on the Issuer. When any such aggregate sales or beneficially own all purchase orders occur, the objective of the Outstanding Subordinated Notes on Collateral Manager (and potentially after any of its Affiliates involved in such transactions) shall be to allocate the Closing Date executions among the accounts in a manner fair and that equitable to all such accounts advised or sub-advised and generally to seek to allocate securities available for investment to all such accounts pro rata in proportion to the optimum amount sought by the Collateral Manager for each respective account. In connection with the foregoing, the objective of the Collateral Manager shall be to allocate investment opportunities and the purchases or its Affiliates may acquire other Notes and that such investments may give rise to conflicts sales of interest between instruments in a manner believed by the Collateral Manager, in good faith, taking into account the Collateral Manager’s duties Servicing Standard (to the Issuer under this Agreement extent applicable), to be fair and equitable. In connection with any purchase of a portfolio of assets other than securities, the interests objective of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect Manager shall be to the Collateral Manager, including in its capacity as investment adviser for both the Issuer allocate such assets (and the BDC, as described in this Agreement and in the Final Offering Circular.
(daggregate purchase price paid for such assets) Subject to compliance with applicable laws and regulations and subject to the Indenture and among the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at clients (including the Issuer’s option without penalty. Such termination shall be effective upon receipt ) in a manner believed by the Collateral Manager of written notice from the Issuerto be fair and equitable. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager shall be fully protected with respect to any such allocation to the extent the Collateral Manager acts in good faith, taking into account the Collateral Manager’s Servicing Standard (to the extent applicable), and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. All purchases and sales of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer shall be conducted in compliance with all applicable laws (including, without limitation, Section 206(3) of the Advisers Act) and the terms of the Indenture. After (and excluding) the Closing Date, the Collateral Manager shall cause any purchase or sale of any Collateral Debt Security or Eligible Investment to be conducted on an arm’s-length basis or, if applicable, in compliance with Section 3(b) hereof. The parties hereto acknowledge and agree that all purchases (including, without limitation, purchases from Affiliates of the Collateral Manager) of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer on the Closing Date (including, without limitation, all such purchases from Affiliates of the Collateral Manager) in a manner contemplated by the final Offering Memorandum, dated July 8, 2005 (the “Offering Memorandum”), related to the Classes of Notes offered thereby (or any supplement thereto) are hereby approved.
(b) The Collateral Manager, subject to and in accordance with the Indenture, may effect direct trades between the Issuer and the Collateral Manager or any of its Affiliates may acquire acting as principal or sell obligations or securitiesagent (any such transaction, for its own account or for a “Related Party Trade”); provided, however, that a Related Party Trade after (and excluding) the accounts Closing Date, other than Credit Risk/Defaulted Security Cash Purchases, sales of its customers, without either requiring or precluding the acquisition or sale of such obligations property or securities for in accordance with the account Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Issuer. Such investments Notes pursuant to Article 9 of the Indenture, may be effected only (i) upon disclosure to and with the same prior consent of an advisory committee containing at least one member independent from the Collateral Manager (whose affirmative vote will be required to grant such consent) acting as a surrogate for, and in the best interest of, the holders of the Securities that has been appointed from time to time as needed by the Issuer or different from those made by the Collateral Manager following the resignation of any member (the “Advisory Committee”) and based on behalf of the Advisory Committee’s determination that such transaction is on terms substantially as favorable to the Issuer as would be the case if a such transaction were effected with Persons not so affiliated with the Collateral Manager or any of its Affiliates and (ii) subject to directiona requirement that the purchase price in respect of any Collateral Debt Security acquired by the Issuer from a Seller pursuant to such a direct trade may not exceed the Principal Balance thereof plus accrued and unpaid interest thereon (or, amountin the case of a Preferred Equity Security, timing all accrued and unpaid dividends or other termsdistributions not attributable to the return of capital by its governing documents). The Advisory Committee, if any, shall be formed subject to the Advisory Committee Guidelines attached hereto as Exhibit A (the “Advisory Committee Guidelines”). The Issuer acknowledges that consents and agrees that, if any transaction relating to the Issuer, including any transaction effected between the Issuer and the Collateral Manager or its Affiliates, shall be subject to the disclosure and its Affiliates may enter intoconsent requirements of Section 206(3) of the Advisers Act, for their own accounts or for the accounts of others, credit default swaps relating to obligors such requirements shall be satisfied with respect to the Issuer and all Holders of the Securities if disclosure shall be given to, and consent obtained from, the Advisory Committee. For avoidance of doubt, it is hereby understood and agreed by the parties hereto that no disclosure to, or consent of, the Advisory Committee shall be required with respect to Credit Risk/Defaulted Security Cash Purchases, sales of property or securities in accordance with the Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Notes pursuant to Article 9 of the Indenture. Notwithstanding the foregoing, to the extent such provisions are determined not to satisy the requirements of the Advisers Act, the Collateral Obligations included Manager shall take such actions in connection with any Related Party Trade as will satisfy the Assetsrequirements of Section 206(3) of the Advisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Gramercy Capital Corp)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction by it, on behalf of the Issuer, including any Transaction with Affiliates, to be conducted on the same economic and other material terms and conditions as would have governed such Transaction were it conducted with a third party and negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Companybasis.
(b) The Collateral Manager will use all commercially reasonable efforts to seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders each order placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentenceconsidering all relevant circumstances, including without limitation, if applicable, the Collateral Manager may, in the allocation conditions or terms of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended early redemption (“Section 28(e)”), or in the case of principal the Class A-L1 Loans or fixed income transactions Class A-L2 Loans, prepayment) of the Debt. Subject to the objective of obtaining best execution (as indicated above) and to the extent contemplated by the Collateral Manager’s current or future Form ADV, the Collateral Manager may cause the Issuer to pay a broker-dealer an amount of commission or other compensation for which effecting a Transaction for the “safe harbor” account of Section 28(e) the Issuer that is greater than the commission or other compensation another broker-dealer would have charged, provided that such broker-dealer is not available, an Affiliate of the Collateral Manager and the Collateral Manager determined in good faith that the amount of the spread charged is commission or other compensation paid to such broker-dealer was reasonable in relation to the value of the brokerage and research and other brokerage services providedprovided by such broker-dealer, viewed in terms of either that particular Transaction or the Collateral Manager’s overall responsibilities with respect to accounts as to which it exercises investment discretion. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets a Transaction with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s sole and reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs (in accordance with the terms of the Indenture) as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to (and any of its Affiliates involved in such Transactions) shall allocate the executions among the accounts in an equitable manner in accordance with its established policies and procedures. The Collateral Manager may consider various factors in selecting banks, brokers and dealers to effect Transactions for the Issuer. The Collateral Manager may take into account a manner that is fair host of qualitative factors other than price. Such factors may include: experience and equitable speed of execution, as well as any “research” services provided to the Collateral Manager, which may include research reports, trade seminars and over time |US-DOCS\153065469.7|| access to certain professionals available to the Collateral Manager believesin connection with effecting transactions. From time to time, in its reasonable business judgmentbrokerage firms may pay for seminars, travel to such seminars and lodging and entertainment. These products and services may not benefit the Issuer directly or indirectly. As a result, to be appropriate the extent permitted by law and in accordance with its internal policies and procedures (as procedures, such arrangements may be amended from time taken into account by the Collateral Manager in deciding to timeconduct Transactions with a specific bank, broker or dealer even though such party may not offer the “Internal Policies”) and applicable lawlowest transaction fees.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a) and 3(b), 3(b) the requirements to obtain certain approvals under Section 3(e), the requirements of Section 5 and 3(e) and the covenants set forth in Section 5applicable law, the Collateral Manager is hereby authorized to effect execute so much or all of the Transactions for the Issuer’s account with or through itself or any of its Affiliates as agent or as principal transactions as the Collateral Manager in its sole discretion shall determine, and transactions where the Issuer may invest in securities of issuers execute Transactions in which the Collateral Manager Manager, its Affiliates and/or its Affiliates or their personnel have a debt, equity or participation interest, interests as described in each Section 4; provided that such Transactions shall be effected for fair market value and on terms as favorable to the Issuer as would be the case in accordance a transaction with an independent third party. In all such dealings, the Collateral Manager or its Affiliates shall be authorized and entitled to retain any commissions, remuneration or profits that may be made in such Transactions and shall not be liable to account for the same to the Issuer, and the Collateral Manager’s fees as set forth in Section 8 shall not be abated thereby. The Issuer authorizes the Collateral Manager or its Affiliates to effect Transactions subject to section 11(a) of the U.S. Securities Exchange Act of 1934, as amended, and rule 11a2-2(T) thereunder (or any similar rule that may be adopted in the future), and the Collateral Manager will use its best efforts to provide the Issuer with information annually disclosing commissions, if any, retained by the Collateral Manager or its Affiliates in connection with such exchange Transactions for the Issuer’s account. The Collateral Manager and its Affiliates also are authorized to effect Transactions for the Issuer’s account in which a security or other property is sold to or purchased from another investment advisory client or brokerage customer of the Collateral Manager or its Affiliate (collectively, “Cross Transactions”), provided that all such Cross Transactions are effected in compliance with applicable law. In a Cross Transaction, the Collateral Manager or its Affiliate may act as an investment adviser or broker for, and may receive commissions or other compensation from, both the Issuer and the other party to the Transaction, and will have a potentially conflicting division of loyalties and responsibilities to both parties. The Issuer’s prior consent to a Cross Transaction is not required and normally will not be obtained where the Collateral Manager or an Affiliate receive no compensation other than the Collateral Manager’s fees under this Agreement for effecting the Cross Transaction. The consent of the Issuer to any Cross Transaction requiring such consent may, in the discretion of the Collateral Manager, be obtained from either the Board of Managers of the Issuer, including an approval by a majority of the independent directors of the Originator as a designated manager of the Issuer, or a Qualified Independent Agent of the Issuer pursuant to the Affiliate Transaction Procedures set forth in Annex A, as applicable.
(d) The Collateral Manager may also conduct transactions for its own account, for the account of its Affiliates, for the account of the Issuer or for the accounts of third parties and will endeavor to resolve conflicts arising therefrom in a manner that it deems equitable to the |US-DOCS\153065469.7|| extent possible under the prevailing facts and circumstances and applicable law as disclosed by the Issuer for the Notes issued on the Closing Date under “Summary of Terms—Collateral Manager,” “Risk Factors—Relating to the Collateral Manager,” “Risk Factors—Relating to Certain Conflicts of Interest—The Issuer will be subject to various conflicts of interest involving the Collateral Manager and its Affiliates and clients” and “The Collateral Manager” and the subheadings thereunder in the final Offering Circular, dated October 28, 2024 (the “Offering Circular”) (collectively, the “Collateral Manager Information”).
(e) The Issuer acknowledges and agrees that Without limiting the foregoing, the Collateral Manager or any Manager, on behalf of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities and for the account of the Issuer. Such investments , may be sell Collateral Obligations to, or buy Collateral Obligations from, the same or different from those made on behalf Collateral Manager, any Affiliate of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager or any fund managed by the Collateral Manager (some or all of which Affiliates or funds may be owned in part by principals, partners, members, directors, managers, managing directors, officers, employees, agents or Affiliates of the Collateral Manager) in transactions in which the Collateral Manager, an Affiliate or such fund acts as principal on the other side of the transaction from the Issuer and its Affiliates may enter into, for their own accounts buys or for the accounts of others, credit default swaps relating to obligors with respect to sells the Collateral Obligations included for its own account (such transactions being referred to as “Affiliate Transactions”), provided, that any such Affiliate Transaction has been approved prior to its completion by either the Board of Managers of the Issuer, including an approval by a majority of the independent directors of the Originator as a designated manager of the Issuer, or by a Qualified Independent Agent in accordance with the AssetsAffiliate Transaction Procedures set forth in Annex A hereto, as applicable.
Appears in 1 contract
Samples: Collateral Management Agreement (Carlyle Credit Solutions, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Subject to Section 5, any purchase or sale of a Collateral Manager, Debt Obligation will be subject to and in accordance with the Indenture, hereby agrees requirements that it shall cause any Transaction to such transaction will be conducted on terms and conditions negotiated no less favorable to the Issuer than may be obtained on an “arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Companybasis”.
(b) The In executing Transactions and selecting brokers or dealers, the Collateral Manager will shall use commercially reasonable efforts to seek to obtain the best execution overall terms (but shall have including price) available (it being understood that the Collateral Manager has no obligation to obtain the lowest price prices available) for and will execute or direct the execution of all orders placed with respect to any Transaction, such Transactions in a manner permitted by law and in a manner that it believes to be in the best interests interest of the Issuer. Subject to In assessing the preceding sentencebest overall terms (including price) available for any Transaction, the Collateral Manager mayshall consider all factors it reasonably determines to be relevant including, but not limited to, the breadth of the market in the allocation of businessCollateral Debt Obligation, select brokers and/or dealers with whom to effect trades on behalf the price of the Issuer Collateral Debt Obligation and may open cash trading accounts with such brokers the financial condition and dealers; provided that none of the Assets may be credited to, held in or subject to the lien execution capability of the broker or dealer executing the Transaction in the Collateral Debt Obligation. Pursuant to its investment determinations for the Issuer, in placing orders with respect to any such account. In addition, subject to the first sentence of this paragraphbrokers and dealers, the Collateral Manager mayshall use commercially reasonable efforts to obtain the best net price and the most favorable execution of its orders. If the Collateral Manager believes such prices and executions are obtainable from more than one broker or dealer, in the allocation of business, take into it may give consideration to placing portfolio transactions with those brokers and dealers who also furnish research and other brokerage services furnished to the Issuer or the Collateral Manager, as the case may be, and as permitted by applicable law. Unless contrary to its duty of best execution, the Collateral Manager or its Affiliates by brokers may direct the Issuer to effect a transaction in bank loans, securities and dealers which are not Affiliates other investments with an Affiliate of the Collateral Manager; provided that Manager so long as the Collateral Manager in good faith believes that Affiliate has the compensation for such services rendered by such brokers capacity to execute the transaction and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), commissions and fees or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used remuneration received by the Collateral Manager in connection with its other advisory activities or investment operationsAffiliate are reasonable and fair. The Collateral Manager may aggregate sales and purchase orders of securities placed with respect to the Assets Collateral with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of and the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable business judgment such aggregation can be expected to shall not result in an overall economic benefit detriment to the Issuer, Issuer taking into consideration the advantageous selling or purchase price, brokerage commission or and other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may shall be apportioned on a weighted average basis. The Issuer acknowledges that the determination of any such economic detriment by the Collateral Manager above is subjective and represents the Collateral Manager’s evaluation at the time. When a Transaction occurs as part of any aggregate sales or purchase ordersorders occur, the objective of the Collateral Manager will shall be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believestime, in its reasonable business judgment, to be appropriate and in accordance consistent with its internal policies and procedures (as such may be amended from time practices with respect to timeother accounts it manages, the “Internal Policies”) status of the portfolio of investments and applicable lawthe requirements in the Indenture.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e3(b) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be , effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to In addition, with the Collateral Manager’s execution obligations described in Sections 3(a)prior authorization of the Issuer, 3(b) and 3(e) and the covenants set forth in Section 5which may be revoked at any time, the Collateral Manager is hereby authorized to enter into agency cross-transactions where it or any of its Affiliates acts as broker for the Issuer and for the other party to the transaction, to the extent permitted under applicable law, in which case any such Affiliate will receive commissions from, and have a potentially conflicting division of loyalties and responsibilities regarding, both parties to the transaction. Also with the prior authorization of the Issuer and in accordance with Section 11(a) of the Exchange Act and Rule 11a2-2(T) thereunder (or any similar rule that may be adopted in the future), the Collateral Manager is authorized to effect principal transactions and transactions where for the Issuer may invest on a national securities exchange of which any of its Affiliates is a member and retain commissions in securities of issuers in which connection therewith, and the Collateral Manager and/or will use commercially reasonable efforts to provide the Issuer with information annually disclosing commissions, if any, retained by the Collateral Manager’s Affiliates in connection with such Transactions for the Issuer’s account.
(d) The Collateral Manager and each of its Affiliates have may also conduct transactions for its own account, for the account of the Issuer or for the accounts of third parties and will endeavor to resolve conflicts arising therefrom in a debtmanner that it deems equitable to the extent possible under the prevailing facts and circumstances and applicable law as disclosed under “Risk Factors—Certain Conflicts of Interest Involving the Collateral Manager” in the Offering Circular (insofar as such information relates to the Collateral Manager, equity or participation interest, in each case in accordance with applicable lawits Affiliates and their respective clients).
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or purchase and sale of such obligations or securities for the account of the Issuer. Such investments may In the event that, in light of market conditions and investment objectives, the Collateral Manager determines that it would be advisable to purchase the same or different from those made on behalf Collateral Debt Obligation both for the Issuer and either the proprietary account of the Collateral Manager or any Affiliate of the Collateral Manager or another client of the Collateral Manager, the Collateral Manager will allocate the executions among the accounts in an equitable manner.
(f) The Collateral Manager may, subject to Sections 3(a), 3(b) and 5(b), effect transactions with the Issuer as to direction, amount, timing or its Affiliates (i) on an agency basis or (ii) involving the purchase of securities or other terms. The Issuer acknowledges obligations owned or originated by the Collateral Manager or its Affiliates; provided that all such transactions must be conducted on an arm’s-length basis; and provided further that all such transactions between the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating Issuer in clause (ii) above shall be conducted pursuant to obligors with respect the Master Conveyance Agreement; and provided further that any Collateral Debt Obligation sold by the Issuer to the Collateral Obligations included in Manager or, so long as the AssetsCollateral Manager is the originator or an Affiliate thereof, an Affiliate of the Collateral Manager, pursuant to Section 12.01(e) of the Indenture, shall be sold for not less than the Market Value of such Collateral Debt Obligation.
Appears in 1 contract
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it Manager shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) overall terms for all orders placed with respect to any Transactionthe Assets, in a manner permitted by law and in a manner it believes to be in considering all reasonable circumstances, including, if applicable, the best interests conditions or terms of early redemption of the IssuerSecurities, it being understood that the Collateral Manager has no obligation to obtain the lowest prices available. Subject to the preceding sentenceforegoing objective, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, take into consideration all factors the Collateral Manager mayreasonably determines to be relevant, in the allocation of businessincluding, take into consideration without limitation, timing, general relevant trends and research and other brokerage services and support equipment and services related thereto furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934or, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) of the Exchange Act is not availableapplicable, in accordance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth herein. Such services may be used by the Collateral Manager in connection with its the other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective operations of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time and/or its Affiliates. In addition, the Collateral Manager believesmay take into account available prices, rates of brokerage commissions and size and difficulty of the order, in its reasonable business judgmentaddition to other relevant factors (such as, without limitation, execution capabilities, reliability (based on total trading rather than individual trading), integrity, financial condition in general, execution and operational capabilities of competing brokers and/or dealers, and the value of the ongoing relationship with such brokers and/or dealers), without having to be appropriate and demonstrate that such factors are of a direct benefit to the Issuer in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) any specific transaction. The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be is subjective and will represent represents the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses commissions and beneficial timing of transactions or any a combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in good faith, and in accordance with the Collateral Manager Servicing Standard and in accordance with the standard of care set forth in Section 2(a)1 hereof, and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. The Issuer acknowledges Collateral Manager may aggregate sales and agrees that one purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or more with accounts of the Affiliates of the Collateral Manager if, in the Collateral Manager’s sole judgment, exercised in good faith, such aggregation will hold not have an adverse effect on the Issuer. When any such aggregate sales or beneficially own all purchase orders occur, the objective of the Outstanding Subordinated Notes on Collateral Manager (and potentially after any of its Affiliates involved in such transactions) shall be to allocate the Closing Date executions among the accounts in a manner fair and that equitable to all such accounts advised or sub-advised and generally to seek to allocate securities available for investment to all such accounts pro rata in proportion to the optimum amount sought by the Collateral Manager for each respective account. In connection with the foregoing, the objective of the Collateral Manager shall be to allocate investment opportunities and the purchases or its Affiliates may acquire other Notes and that such investments may give rise to conflicts sales of interest between instruments in a manner believed by the Collateral Manager, in good faith, taking into account the Collateral Manager’s duties Servicing Standard and in accordance with the standard of care set forth in Section 1 hereof, to be fair and equitable. In connection with any purchase of a portfolio of assets other than securities, the Issuer under this Agreement and the interests objective of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect Manager shall be to the Collateral Manager, including in its capacity as investment adviser for both the Issuer allocate such assets (and the BDC, as described in this Agreement and in the Final Offering Circular.
(daggregate purchase price paid for such assets) Subject to compliance with applicable laws and regulations and subject to the Indenture and among the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at clients (including the Issuer’s option without penalty. Such termination shall be effective upon receipt ) in a manner believed by the Collateral Manager of written notice from the Issuerto be fair and equitable. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager shall be fully protected with respect to any such allocation to the extent the Collateral Manager acts in good faith, taking into account the Collateral Manager’s Servicing Standard and in accordance with the standard of care set forth in Section 1 hereof, and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. All purchases and sales of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer shall be conducted in compliance with all applicable laws (including, without limitation, Section 206(3) of the Advisers Act) and the terms of the Indenture. After (and excluding) the Closing Date, the Collateral Manager shall cause any purchase or sale of any Collateral Debt Security or Eligible Investment to be conducted on an arm’s-length basis or, if applicable, in compliance with Section 3(b) hereof.
(b) The Collateral Manager, subject to and in accordance with the terms and conditions of the Indenture, may effect direct trades between the Issuer and the Collateral Manager or any of its Affiliates may acquire acting as principal or sell obligations or securitiesagent (any such transaction, for its own account or for a “Related Party Trade”): provided, however, that a Related Party Trade after (and excluding) the accounts Closing Date, other than Permitted Cash Purchases, sales of its customers, without either requiring or precluding the acquisition or sale of such obligations property or securities for in accordance with the account Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Issuer. Such investments Notes pursuant to Article 9 of the Indenture, may be effected only (i) upon disclosure to and with the same prior consent of an advisory committee containing at least one member independent from the Collateral Manager (whose affirmative vote shall be required to grant such consent) acting as a surrogate for, and in the best interest of, the holders of the Securities that has been appointed from time to time as needed by the Issuer or different from those made by the Collateral Manager following the resignation of any member (the “Advisory Committee”) and based on behalf of the Advisory Committee’s determination that such transaction is on terms substantially as favorable to the Issuer as would be the case if a such transaction were effected with Persons not so affiliated with the Collateral Manager or any of its Affiliates, (ii) subject to directiona requirement that the purchase price in respect of any Collateral Debt Security acquired by the Issuer from a Seller pursuant to such a direct trade may not exceed the Principal Balance thereof, amountplus accrued and unpaid interest thereon (or, timing in the case of a Preferred Equity Security, all accrued and unpaid dividends or other termsdistributions not attributable to the return of capital by its governing documents) and (iii) if such purchase or sale, as the case may be, is in accordance with the terms of the Indenture. The Advisory Committee, if any, shall be formed subject to the Advisory Committee Guidelines attached hereto as Exhibit A (the “Advisory Committee Guidelines”). The Issuer acknowledges that consents and agrees that, if any transaction relating to the Issuer, including any transaction effected between the Issuer and the Collateral Manager or its Affiliates, shall be subject to the disclosure and its Affiliates may enter intoconsent requirements of Section 206(3) of the Advisers Act, for their own accounts or for the accounts of others, credit default swaps relating to obligors such requirements shall be satisfied with respect to the Issuer and all Holders of the Securities if disclosure shall be given to, and consent obtained from, the Advisory Committee. For avoidance of doubt, it is hereby understood and agreed by the parties hereto that no disclosure to, or consent of, the Advisory Committee shall be required with respect to Permitted Cash Purchases, sales of property or securities in accordance with the Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Notes pursuant to Article 9 of the Indenture. Notwithstanding the foregoing, to the extent such provisions are determined not to satisfy the requirements of the Advisers Act, the Collateral Obligations included Manager shall take such actions in connection with any Related Party Trade as will satisfy the Assetsrequirements of Section 206(3) of the Advisers Act.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Gramercy Capital Corp)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureCredit Agreement, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the IndentureCredit Agreement, no Assets Collateral (other than any Delayed Drawdown Collateral Obligations Funding Loans or Revolving Collateral ObligationsLoans) shall be purchased if such Assets Collateral may give rise to any obligation or liability on the IssuerBorrower’s part to take any action or make any payment other than at the IssuerBorrower’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the IssuerBorrower. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer Borrower and may open cash trading accounts with such brokers and dealers; provided that none of the Assets no Collateral may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets Collateral with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the IssuerBorrower, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets Collateral on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer Borrower acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer Borrower will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer Borrower may/can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer Borrower acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may act as Lenders or acquire other Subordinated Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer Borrower under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture Credit Agreement and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in requirements of Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer Borrower and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the IssuerBorrower’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the IssuerBorrower. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in requirements of Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer Borrower may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer Borrower acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the IssuerBorrower. Such investments may be the same or different from those made on behalf of the Issuer Borrower as to direction, amount, timing or other terms. The Issuer Borrower acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors and issuers with respect to the Collateral Obligations Loans included in the AssetsCollateral.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital Private Credit Fund)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek use reasonable efforts to obtain the best execution (but shall have no obligation to obtain the lowest price prices available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes in its reasonable business judgment to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by Clients of the Collateral Manager or with accounts of the Affiliates of the Collateral ManagerManager (including the Asset Manager Affiliates), if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager and its Affiliates will be to use commercially reasonable efforts to allocate the executions among the accounts Clients (including Clients of the Asset Manager Affiliates) in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Collateral Manager (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates the Standard of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering CircularCare.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a)herein, 3(b) compliance with applicable law and 3(e) and compliance with the covenants set forth in Section 5applicable provisions of the Indenture, the Collateral Manager is hereby authorized to may effect principal transactions and transactions where with the Issuer may invest in securities of issuers in which the Collateral Manager and/or or its Affiliates have (i) on an agency basis or (ii) on a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that principal basis where the Collateral Manager or any of its Affiliates sells assets to or purchases assets from the Issuer.
(e) The Collateral Manager or any of its Affiliates (including the Asset Manager Affiliates) may acquire or sell obligations or securitiesassets, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities assets for the account of the Issuer. Such investments may be the same as or different from those made on behalf of the Issuer. In the event that, in light of market conditions and investment objectives, the Collateral Manager determines that it would be advisable to acquire the same Collateral Obligation both for the Issuer as to directionand either the proprietary account of the Collateral Manager or any Affiliate of the Collateral Manager (including the Asset Manager Affiliates) or another Client of the Collateral Manager, amountthe Collateral Manager will allocate investment opportunities across such entities for which such opportunities are appropriate, timing consistent with (1) its internal conflict of interest and allocation policies and (2) any applicable restrictions of the 1940 Act regarding co-investments with affiliates.
(f) The Issuer acknowledges and agrees that the Collateral Manager and its Affiliates (including the Asset Manager Affiliates) may invest for their own accounts or other termsfor the accounts of others in assets that would be appropriate investments for the Issuer. The Issuer acknowledges that the Collateral Manager and its Affiliates (including the Asset Manager Affiliates) may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors and issuers with respect to the Collateral Obligations included in the Assets. The Issuer understands that the Collateral Manager and its Affiliates (including the Asset Manager Affiliates) may have economic interests in (including, without limitation, controlling equity interests or other equity or debt interests), be lenders to, receive payments from, render services to, engage in transactions with or have other relationships with obligors and issuers with respect to the Collateral Obligations included in the Assets. In particular, the Collateral Manager and its Affiliates (including the Asset Manager Affiliates) may make and/or hold investments in an obligor’s or issuer’s obligations or securities that may be pari passu, senior or junior in ranking to an investment in such obligor’s or issuer’s obligations or securities made and/or held by the Issuer, or otherwise have interests different from or adverse to those of the Issuer.
Appears in 1 contract
Samples: Collateral Management Agreement (KCAP Financial, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureIndenture and the Master Loan Sale Agreement, as applicable, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture or the Master Loan Sale Agreement) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The To the extent required by applicable law, the Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for itself, its affiliates or other accounts managed by the Collateral Manager or with accounts of the Affiliates by affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). the Collateral Manager Standard.
(c) The Issuer acknowledges and agrees Collateral Manager may, from time to time, be presented with investment opportunities that one or more Affiliates fall within the investment objectives of the Issuer, of the Collateral Manager will hold or beneficially own all and its affiliates, of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by Clients of the Collateral Manager or its Affiliates may acquire other Notes affiliates and that of Persons with whom the Collateral Manager has entered into co-investment arrangements. In such investments may give rise circumstances, the Collateral Manager expects to conflicts of interest between allocate such opportunities among the Collateral Manager’s duties to , its affiliates, Clients of the Issuer under this Agreement Collateral Manager or its affiliates and any other Persons with whom the interests Collateral Manager has entered into any co-investment arrangement, as applicable, in accordance with the allocation policy of the Collateral Manager, its Affiliates as such policy may be amended from time to time, and on a basis that the Collateral Manager determines in good faith is appropriate taking into consideration such factors as any allocation and/or co-investment policy agreed to with any such Persons, as applicable, and the contractual and legal duties owed to such Persons, as applicable, the primary investment mandates of each, the capital available to each, any restrictions on investment applicable thereto, the sourcing of the transaction, the size of the transaction, the amount of potential follow-on investing that may be required for such investment and the other investments held by each, the relation of such opportunity to the investment strategy thereof, reasons of portfolio balance, the remaining investment or its Related Personsreinvestment period thereof and any other consideration deemed relevant by the Collateral Manager in good faith. The Issuer hereby acknowledges Collateral Manager will seek to allocate investment opportunities across the Persons for which such opportunities are appropriate in a manner that various potential is fair and actual conflicts equitable over time and consistent with (1) its internal conflict of interest do and allocation policies (as the same may be amended from time to time, the “Internal Policies”), (2) any allocation and/or co-investment policy or may exist agreement entered into with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDCany such Person, as described in this Agreement each may be amended from time to time, and in (3) the Final Offering Circularrequirements of applicable law.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 55 with respect to repurchases or substitutions, the Collateral Manager is hereby authorized to may effect client cross-transactions Transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it Client of the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction affiliates at the Issuer’s option without penalty. Such termination shall be effective upon receipt by any time that the Collateral Manager believes such Transaction to be fair to the Issuer and the other such party involved. The Collateral Manager may direct the Issuer to acquire or dispose of written notice from Collateral Obligations in trades between the IssuerIssuer and other Clients of the Collateral Manager or its affiliates in accordance with applicable contractual and regulatory requirements. Subject In such case, the Collateral Manager and such affiliates may have a potentially conflicting division of loyalties and responsibilities regarding the Issuer and the other parties to such trade. Under certain circumstances, the Collateral Manager and its affiliates may determine that it is appropriate to avoid such conflicts by purchasing or selling a Collateral Obligation at a fair value that has been calculated pursuant to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, valuation procedures to another Client of the Collateral Manager is hereby authorized to or such affiliates.
(e) The Collateral Manager may effect principal transactions and transactions Transactions where the Issuer may invest in loans and securities of Obligors or issuers in which the Collateral Manager and/or its Affiliates affiliates have a debt, equity or participation interestinterest or may acquire Collateral Obligations from the Collateral Manager or one of its affiliates, in each case in accordance with applicable law.
, which may include, (ea) The Issuer acknowledges and agrees that in connection with the Issuer’s purchase of Closing Date Assets on the Closing Date, the Collateral Manager obtaining the consent and approval of or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that by receiving the Collateral Manager and its Affiliates may enter into, for their own accounts or for consent of the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included investors purchasing an interest in the Assets.Notes on the Closing Date as described in the section in the Final Offering Circular titled “—Related Parties;
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it Manager shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) overall terms for all orders placed with respect to any Transactionthe Assets, in a manner permitted by law and in a manner it believes to be in considering all reasonable circumstances, including, if applicable, the best interests conditions or terms of early redemption of the IssuerSecurities, it being understood that the Collateral Manager has no obligation to obtain the lowest prices available. Subject to the preceding sentenceforegoing objective, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, take into consideration all factors the Collateral Manager mayreasonably determines to be relevant, in the allocation of businessincluding, take into consideration without limitation, timing, general relevant trends and research and other brokerage services and support equipment and services related thereto furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934or, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) of the Exchange Act is not availableapplicable, in accordance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth herein. Such services may be used by the Collateral Manager in connection with its the other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective operations of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time and/or its Affiliates. In addition, the Collateral Manager believesmay take into account available prices, rates of brokerage commissions and size and difficulty of the order, in its reasonable business judgmentaddition to other relevant factors (such as, without limitation, execution capabilities, reliability (based on total trading rather than individual trading), integrity, financial condition in general, execution and operational capabilities of competing brokers and/or dealers, and the value of the ongoing relationship with such brokers and/or dealers), without having to be appropriate and demonstrate that such factors are of a direct benefit to the Issuer in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) any specific transaction. The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be is subjective and will represent represents the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses commissions and beneficial timing of transactions or any a combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in good faith, and in accordance with Section 2(athe Collateral Manager Servicing Standard (to the extent applicable), and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. The Issuer acknowledges Collateral Manager may aggregate sales and agrees that one purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or more with accounts of the Affiliates of the Collateral Manager if in the Collateral Manager’s sole judgment, exercised in good faith, such aggregation will hold not have an adverse effect on the Issuer. When any such aggregate sales or beneficially own all purchase orders occur, the objective of the Outstanding Subordinated Notes on Collateral Manager (and potentially after any of its Affiliates involved in such transactions) shall be to allocate the Closing Date executions among the accounts in a manner fair and that equitable to all such accounts advised or sub-advised and generally to seek to allocate securities available for investment to all such accounts pro rata in proportion to the optimum amount sought by the Collateral Manager for each respective account. In connection with the foregoing, the objective of the Collateral Manager shall be to allocate investment opportunities and the purchases or its Affiliates may acquire other Notes and that such investments may give rise to conflicts sales of interest between instruments in a manner believed by the Collateral Manager, in good faith, taking into account the Collateral Manager’s duties Servicing Standard (to the Issuer under this Agreement extent applicable), to be fair and equitable. In connection with any purchase of a portfolio of assets other than securities, the interests objective of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect Manager shall be to the Collateral Manager, including in its capacity as investment adviser for both the Issuer allocate such assets (and the BDC, as described in this Agreement and in the Final Offering Circular.
(daggregate purchase price paid for such assets) Subject to compliance with applicable laws and regulations and subject to the Indenture and among the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at clients (including the Issuer’s option without penalty. Such termination shall be effective upon receipt ) in a manner believed by the Collateral Manager of written notice from the Issuerto be fair and equitable. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager shall be fully protected with respect to any such allocation to the extent the Collateral Manager acts in good faith, taking into account the Collateral Manager’s Servicing Standard (to the extent applicable), and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. All purchases and sales of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer shall be conducted in compliance with all applicable laws (including, without limitation, Section 206(3) of the Advisers Act) and the terms of the Indenture. After (and excluding) the Closing Date, the Collateral Manager shall cause any purchase or sale of any Collateral Debt Security or Eligible Investment to be conducted on an arm’s-length basis or, if applicable, in compliance with Section 3(b) hereof.
(b) The Collateral Manager, subject to and in accordance with the Indenture, may effect direct trades between the Issuer and the Collateral Manager or any of its Affiliates may acquire acting as principal or sell obligations or securitiesagent (any such transaction, for its own account or for a “Related Party Trade”); provided, however, that a Related Party Trade after (and excluding) the accounts Closing Date, other than Credit Risk/Defaulted Security Cash Purchases, sales of its customers, without either requiring or precluding the acquisition or sale of such obligations property or securities for in accordance with the account Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Issuer. Such investments Notes pursuant to Article 9 of the Indenture, may be effected only (i) upon disclosure to and with the same prior consent of an advisory committee containing at least one member independent from the Collateral Manager (whose affirmative vote will be required to grant such consent) acting as a surrogate for, and in the best interest of, the holders of the Securities that has been appointed from time to time as needed by the Issuer or different from those made by the Collateral Manager following the resignation of any member (the “Advisory Committee”) and based on behalf of the Advisory Committee’s determination that such transaction is on terms substantially as favorable to the Issuer as would be the case if a such transaction were effected with Persons not so affiliated with the Collateral Manager or any of its Affiliates and (ii) subject to directiona requirement that the purchase price in respect of any Collateral Debt Security acquired by the Issuer from a Seller pursuant to such a direct trade may not exceed the Principal Balance thereof plus accrued and unpaid interest thereon (or, amountin the case of a Preferred Equity Security, timing all accrued and unpaid dividends or other termsdistributions not attributable to the return of capital by its governing documents). The Advisory Committee, if any, shall be formed subject to the Advisory Committee Guidelines attached hereto as Exhibit A (the “Advisory Committee Guidelines”). The Issuer acknowledges that consents and agrees that, if any transaction relating to the Issuer, including any transaction effected between the Issuer and the Collateral Manager or its Affiliates, shall be subject to the disclosure and its Affiliates may enter intoconsent requirements of Section 206(3) of the Advisers Act, for their own accounts or for the accounts of others, credit default swaps relating to obligors such requirements shall be satisfied with respect to the Issuer and all Holders of the Securities if disclosure shall be given to, and consent obtained from, the Advisory Committee. For avoidance of doubt, it is hereby understood and agreed by the parties hereto that no disclosure to, or consent of, the Advisory Committee shall be required with respect to Credit Risk/Defaulted Security Cash Purchases, sales of property or securities in accordance with the Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Notes pursuant to Article 9 of the Indenture. Notwithstanding the foregoing, to the extent such provisions are determined not to satisfy the requirements of the Advisers Act, the Collateral Obligations included Manager shall take such actions in connection with any Related Party Trade as will satisfy the Assetsrequirements of Section 206(3) of the Advisers Act.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Gramercy Capital Corp)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes Debt and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC 3, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager Parties will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes they believe to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager Parties may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that that, none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager Parties may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager Parties or its their Affiliates by brokers and dealers which are not Affiliates of the Collateral ManagerManager Parties; provided that that, the Collateral Manager Parties in good faith believes believe that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager Parties may aggregate sales and purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager Parties or with accounts of the Affiliates of the Collateral ManagerManager Parties, if in the Collateral Manager’s Manager Parties’ reasonable judgment such aggregation can be expected to shall not result in an overall economic benefit detriment to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basisall circumstances that it considers relevant. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager Parties will be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Manager Parties (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit (or lack of detriment) to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time taking into consideration all circumstances that it considers relevant, (ii) under some circumstances, such allocation may adversely affect the Issuer can be expected with respect to be benefited by relatively better purchase the price or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing size of transactions or any combination of any of these and/or other factors the positions being sold to the Issuer and (iiiii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a)) herein. The Collateral Manager is expected to acquire all of the Subordinated Notes (including those Subordinated Notes that are not part of the U.S. Retention Interest) on the Closing Date and owns, and expects to continue to own, 100% of the membership interests in the Issuer. In addition, the Collateral Manager or any of its Affiliates may acquire Debt of the Issuer at any time for its own account. The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments investment(s) may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularinterest.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.through an
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer. In the event that, in light of market conditions and investment objectives, the Collateral Manager determines that it would be advisable to acquire the same Collateral Obligation both for the Issuer and either the proprietary account of the Manager Parties or another client of the Manager Parties, the Manager Parties shall allocate the executions among the accounts in an equitable manner in accordance with the Internal Policies and procedures as it and its Affiliates (including the Manager Parties and their advisory affiliates) may have in place from time to direction, amount, timing or other termstime . The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors and issuers with respect to the Collateral Obligations included in the Assets. The Issuer acknowledges that other funds or investment accounts managed by the Collateral Manager or any of its Affiliates may require the Collateral Manager or such Affiliates to apply a different valuation methodology in valuing specific investments than the valuation methodology set forth in the Transaction Documents for the Issuer. As a result of such different methodology, the value of certain investments held in such separately managed funds or accounts may differ from the value assigned to the same investments held by the Issuer under the Transaction Documents.
Appears in 1 contract
Samples: Collateral Management Agreement (Nuveen Churchill Direct Lending Corp.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it Manager shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) overall terms for all orders placed with respect to any Transactionthe Assets, in a manner permitted by law and in a manner it believes to be in considering all reasonable circumstances, including, if applicable, the best interests conditions or terms of early redemption of the IssuerSecurities, it being understood that the Collateral Manager has no obligation to obtain the lowest prices available. Subject to the preceding sentenceforegoing objective, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, take into consideration all factors the Collateral Manager mayreasonably determines to be relevant, in the allocation of businessincluding, take into consideration without limitation, timing, general relevant trends and research and other brokerage services and support equipment and services related thereto furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934or, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) of the Exchange Act is not availableapplicable, in accordance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth herein. Such services may be used by the Collateral Manager in connection with its the other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective operations of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time and/or its Affiliates. In addition, the Collateral Manager believesmay take into account available prices, rates of brokerage commissions and size and difficulty of the order, in its reasonable business judgmentaddition to other relevant factors (such as, without limitation, execution capabilities, reliability (based on total trading rather than individual trading), integrity, financial condition in general, execution and operational capabilities of competing brokers and/or dealers, and the value of the ongoing relationship with such brokers and/or dealers), without having to be appropriate and demonstrate that such factors are of a direct benefit to the Issuer in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) any specific transaction. The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be is subjective and will represent represents the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses commissions and beneficial timing of transactions or any a combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in good faith, and in accordance with the Collateral Manager Servicing Standard and in accordance with the standard of care set forth in Section 2(a)1 hereof, and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. The Issuer acknowledges Collateral Manager may aggregate sales and agrees that one purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or more with accounts of the Affiliates of the Collateral Manager if, in the Collateral Manager’s sole judgment, exercised in good faith, such aggregation will hold not have an adverse effect on the Issuer. When any such aggregate sales or beneficially own all purchase orders occur, the objective of the Outstanding Subordinated Notes on Collateral Manager (and potentially after any of its Affiliates involved in such transactions) shall be to allocate the Closing Date executions among the accounts in a manner fair and that equitable to all such accounts advised or sub-advised and generally to seek to allocate securities available for investment to all such accounts pro rata in proportion to the optimum amount sought by the Collateral Manager for each respective account. In connection with the foregoing, the objective of the Collateral Manager shall be to allocate investment opportunities and the purchases or its Affiliates may acquire other Notes and that such investments may give rise to conflicts sales of interest between instruments in a manner believed by the Collateral Manager, in good faith, taking into account the Collateral Manager’s duties Servicing Standard and in accordance with the standard of care set forth in Section 1 hereof, to be fair and equitable. In connection with any purchase of a portfolio of assets other than securities, the Issuer under this Agreement and the interests objective of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect Manager shall be to the Collateral Manager, including in its capacity as investment adviser for both the Issuer allocate such assets (and the BDC, as described in this Agreement and in the Final Offering Circular.
(daggregate purchase price paid for such assets) Subject to compliance with applicable laws and regulations and subject to the Indenture and among the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at clients (including the Issuer’s option without penalty. Such termination shall be effective upon receipt ) in a manner believed by the Collateral Manager of written notice from the Issuerto be fair and equitable. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager shall be fully protected with respect to any such allocation to the extent the Collateral Manager acts in good faith, taking into account the Collateral Manager’s Servicing Standard and in accordance with the standard of care set forth in Section 1 hereof, and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. All purchases and sales of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer shall be conducted in compliance with all applicable laws (including, without limitation, Section 206(3) of the Advisers Act) and the terms of the Indenture. After (and excluding) the Closing Date, the Collateral Manager shall cause any purchase or sale of any Collateral Debt Security or Eligible Investment to be conducted on an arm’s-length basis or, if applicable, in compliance with Section 3(b) hereof. The parties hereto acknowledge and agree that all purchases (including, without limitation, purchases from Affiliates of the Collateral Manager) of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer on the Closing Date (including, without limitation, all such purchases from Affiliates of the Collateral Manager) in a manner contemplated by the final Offering Memorandum, dated August 6, 2007 (the “Offering Memorandum”), related to the Classes of Notes offered thereby (or any supplement thereto) are hereby approved.
(b) The Collateral Manager, subject to and in accordance with the terms and conditions of the Indenture, may effect direct trades between the Issuer and the Collateral Manager or any of its Affiliates may acquire acting as principal or sell obligations or securitiesagent (any such transaction, for its own account or for a “Related Party Trade”); provided, however, that a Related Party Trade after (and excluding) the accounts Closing Date, other than Permitted Cash Purchases, sales of its customers, without either requiring or precluding the acquisition or sale of such obligations property or securities for in accordance with the account Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Issuer. Such investments Notes pursuant to Article 9 of the Indenture, may be effected only (i) upon disclosure to and with the same prior consent of an advisory committee containing at least one member independent from the Collateral Manager (whose affirmative vote shall be required to grant such consent) acting as a surrogate for, and in the best interest of, the holders of the Securities that has been appointed from time to time as needed by the Issuer or different from those made by the Collateral Manager following the resignation of any member (the “Advisory Committee”) and based on behalf of the Advisory Committee’s determination that such transaction is on terms substantially as favorable to the Issuer as would be the case if a such transaction were effected with Persons not so affiliated with the Collateral Manager or any of its Affiliates, (ii) subject to directiona requirement that the purchase price in respect of any Collateral Debt Security acquired by the Issuer from a Seller pursuant to such a direct trade may not exceed the Principal Balance thereof, amountplus accrued and unpaid interest thereon (or, timing in the case of a Preferred Equity Security, all accrued and unpaid dividends or other termsdistributions not attributable to the return of capital by its governing documents) and (iii) if such purchase or sale, as the case may be, is in accordance with the terms of the Indenture. The Advisory Committee, if any, shall be formed subject to the Advisory Committee Guidelines attached hereto as Exhibit A (the “Advisory Committee Guidelines”). The Issuer acknowledges that consents and agrees that, if any transaction relating to the Issuer, including any transaction effected between the Issuer and the Collateral Manager or its Affiliates, shall be subject to the disclosure and its Affiliates may enter intoconsent requirements of Section 206(3) of the Advisers Act, for their own accounts or for the accounts of others, credit default swaps relating to obligors such requirements shall be satisfied with respect to the Issuer and all Holders of the Securities if disclosure shall be given to, and consent obtained from, the Advisory Committee. For avoidance of doubt, it is hereby understood and agreed by the parties hereto that no disclosure to, or consent of, the Advisory Committee shall be required with respect to Permitted Cash Purchases, sales of property or securities in accordance with the Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Notes pursuant to Article 9 of the Indenture. Notwithstanding the foregoing, to the extent such provisions are determined not to satisfy the requirements of the Advisers Act, the Collateral Obligations included Manager shall take such actions in connection with any Related Party Trade as will satisfy the Assetsrequirements of Section 206(3) of the Advisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Gramercy Capital Corp)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it Manager shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) overall terms for all orders placed with respect to any Transactionthe Assets, in a manner permitted by law and in a manner it believes to be in considering all reasonable circumstances, including, if applicable, the best interests conditions or terms of early redemption of the IssuerSecurities, it being understood that the Collateral Manager has no obligation to obtain the lowest prices available. Subject to the preceding sentenceforegoing objective, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, take into consideration all factors the Collateral Manager mayreasonably determines to be relevant, in the allocation of businessincluding, take into consideration without limitation, timing, general relevant trends and research and other brokerage services and support equipment and services related thereto furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934or, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) of the Exchange Act is not availableapplicable, in accordance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth herein. Such services may be used by the Collateral Manager in connection with its the other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective operations of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time and/or its Affiliates. In addition, the Collateral Manager believesmay take into account available prices, rates of brokerage commissions and size and difficulty of the order, in its reasonable business judgmentaddition to other relevant factors (such as, without limitation, execution capabilities, reliability (based on total trading rather than individual trading), integrity, financial condition in general, execution and operational capabilities of competing brokers and/or dealers, and the value of the ongoing relationship with such brokers and/or dealers), without having to be appropriate and demonstrate that such factors are of a direct benefit to the Issuer in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) any specific transaction. The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be is subjective and will represent represents the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses commissions and beneficial timing of transactions or any a combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in good faith, and in accordance with the Collateral Manager Servicing Standard and in accordance with the standard of care set forth in Section 2(a)1 hereof, and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. The Issuer acknowledges Collateral Manager may aggregate sales and agrees that one purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or more with accounts of the Affiliates of the Collateral Manager if, in the Collateral Manager’s sole judgment, exercised in good faith, such aggregation will hold not have an adverse effect on the Issuer. When any such aggregate sales or beneficially own all purchase orders occur, the objective of the Outstanding Subordinated Notes on Collateral Manager (and potentially after any of its Affiliates involved in such transactions) shall be to allocate the Closing Date executions among the accounts in a manner fair and that equitable to all such accounts advised or sub-advised and generally to seek to allocate securities available for investment to all such accounts pro rata in proportion to the optimum amount sought by the Collateral Manager for each respective account. In connection with the foregoing, the objective of the Collateral Manager shall be to allocate investment opportunities and the purchases or its Affiliates may acquire other Notes and that such investments may give rise to conflicts sales of interest between instruments in a manner believed by the Collateral Manager, in good faith, taking into account the Collateral Manager’s duties Servicing Standard and in accordance with the standard of care set forth in Section 1 hereof, to be fair and equitable. In connection with any purchase of a portfolio of assets other than securities, the Issuer under this Agreement and the interests objective of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect Manager shall be to the Collateral Manager, including in its capacity as investment adviser for both the Issuer allocate such assets (and the BDC, as described in this Agreement and in the Final Offering Circular.
(daggregate purchase price paid for such assets) Subject to compliance with applicable laws and regulations and subject to the Indenture and among the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at clients (including the Issuer’s option without penalty. Such termination shall be effective upon receipt ) in a manner believed by the Collateral Manager of written notice from the Issuerto be fair and equitable. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager shall be fully protected with respect to any such allocation to the extent the Collateral Manager acts in good faith, taking into account the Collateral Manager’s Servicing Standard and in accordance with the standard of care set forth in Section 1 hereof, and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. All purchases and sales of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer shall be conducted in compliance with all applicable laws (including, without limitation, Section 206(3) of the Advisers Act) and the terms of the Indenture. After (and excluding) the Closing Date, the Collateral Manager shall cause any purchase or sale of any Collateral Debt Security or Eligible Investment to be conducted on an arm’s-length basis or, if applicable, in compliance with Section 3(b) hereof. The parties hereto acknowledge and agree that all purchases (including, without limitation, purchases from Affiliates of the Collateral Manager) of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer on the Closing Date (including, without limitation, all such purchases from Affiliates of the Collateral Manager) in a manner contemplated by the final Offering Memorandum, dated August 23, 2006 (the “Offering Memorandum”), related to the Classes of Notes offered thereby (or any supplement thereto) are hereby approved.
(b) The Collateral Manager, subject to and in accordance with the terms and conditions of the Indenture, may effect direct trades between the Issuer and the Collateral Manager or any of its Affiliates may acquire acting as principal or sell obligations or securitiesagent (any such transaction, for its own account or for a “Related Party Trade”); provided, however, that a Related Party Trade after (and excluding) the accounts Closing Date, other than Credit Risk/Defaulted Security Cash Purchases, sales of its customers, without either requiring or precluding the acquisition or sale of such obligations property or securities for in accordance with the account Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Issuer. Such investments Notes pursuant to Article 9 of the Indenture, may be effected only (i) upon disclosure to and with the same prior consent of an advisory committee containing at least one member independent from the Collateral Manager (whose affirmative vote will be required to grant such consent) acting as a surrogate for, and in the best interest of, the holders of the Securities that has been appointed from time to time as needed by the Issuer or different from those made by the Collateral Manager following the resignation of any member (the “Advisory Committee”) and based on behalf of the Advisory Committee’s determination that such transaction is on terms substantially as favorable to the Issuer as would be the case if a such transaction were effected with Persons not so affiliated with the Collateral Manager or any of its Affiliates, (ii) subject to directiona requirement that the purchase price in respect of any Collateral Debt Security acquired by the Issuer from a Seller pursuant to such a direct trade may not exceed the Principal Balance thereof, amountplus accrued and unpaid interest thereon (or, timing in the case of a Preferred Equity Security, all accrued and unpaid dividends or other termsdistributions not attributable to the return of capital by its governing documents) and (iii) if such purchase or sale, as the case may be, is in accordance with the terms of the Indenture. The Advisory Committee, if any, shall be formed subject to the Advisory Committee Guidelines attached hereto as Exhibit A (the “Advisory Committee Guidelines”). The Issuer acknowledges that consents and agrees that, if any transaction relating to the Issuer, including any transaction effected between the Issuer and the Collateral Manager or its Affiliates, shall be subject to the disclosure and its Affiliates may enter intoconsent requirements of Section 206(3) of the Advisers Act, for their own accounts or for the accounts of others, credit default swaps relating to obligors such requirements shall be satisfied with respect to the Issuer and all Holders of the Securities if disclosure shall be given to, and consent obtained from, the Advisory Committee. For avoidance of doubt, it is hereby understood and agreed by the parties hereto that no disclosure to, or consent of, the Advisory Committee shall be required with respect to Credit Risk/Defaulted Security Cash Purchases, sales of property or securities in accordance with the Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Notes pursuant to Article 9 of the Indenture. Notwithstanding the foregoing, to the extent such provisions are determined not to satisfy the requirements of the Advisers Act, the Collateral Obligations included Manager shall take such actions in connection with any Related Party Trade as will satisfy the Assetsrequirements of Section 206(3) of the Advisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Gramercy Capital Corp)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the IndentureCredit Agreement, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the IssuerBorrower. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer Borrower and may open cash trading accounts with such brokers and dealers; provided that that, none of the Warehouse Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that that, the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders of securities placed with respect to the Warehouse Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the IssuerBorrower, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basisall circumstances that it considers relevant. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Collateral Manager (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer Borrower acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer Borrower will be subjective and will represent the Collateral Manager’s evaluation at the time taking into consideration all circumstances that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors it considers relevant and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular) herein.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and cross-transactions where the Issuer may invest in securities Collateral Manager causes a Transaction to be effected between the Borrower and another account advised by it or any of issuers in which its affiliates. Such termination shall be effective upon receipt by the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable lawof written notice from the Borrower.
(e) The Issuer Borrower acknowledges and agrees that the Collateral Manager or any of its Affiliates affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the IssuerBorrower. Such investments may be the same or different from those made on behalf of the Issuer as Borrower. In the event that, in light of market conditions and investment objectives, the Collateral Manager determines that it would be advisable to directionacquire the same Warehouse Assets both for the Borrower and either the proprietary account of the Collateral Manager or any affiliate of the Collateral Manager or another client of the Collateral Manager, amount, timing or other termsthe Collateral Manager will allocate the executions among the accounts in an equitable manner in accordance with the Internal Policies of the Collateral Manager. The Issuer Borrower acknowledges that the Collateral Manager and its Affiliates affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Warehouse Assets. The Borrower acknowledges that other funds or investment accounts managed by the Collateral Obligations included Manager or any of its affiliates may require the Collateral Manager or such affiliates to apply a different valuation methodology in valuing specific investments than the valuation methodology set forth in the AssetsCredit Documents for the Borrower. As a result of such different methodology, the value of certain investments held in such separately managed funds or accounts may differ from the value assigned to the same investments held by the Borrower under the Credit Documents.
Appears in 1 contract
Samples: Warehouse Collateral Management Agreement (Apollo Debt Solutions BDC)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis (except as otherwise expressly required by the Indenture) and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to the Obligor or issuer thereof to take any action or make any payment other than at the Issuer’s option. Further.
(b) To the extent required by applicable law, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek use all commercially reasonably efforts to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that that, none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates affiliates by brokers and dealers which are not Affiliates affiliates of the Collateral Manager; provided that that, the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for itself, its Affiliates or other accounts managed by the Collateral Manager or with accounts of the by Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets obligations or securities on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales sale prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). the Collateral Manager Standard.
(c) The Issuer acknowledges and agrees Collateral Manager may, from time to time, be presented with investment opportunities that one or more Affiliates fall within the investment objectives of the Issuer, of the Collateral Manager will hold or beneficially own all and its Affiliates, of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by Clients of the Collateral Manager or its Affiliates may acquire other Notes and that of Persons with whom the Collateral Manager has entered into co-investment arrangements. In such investments may give rise circumstances, the Collateral Manager expects to conflicts of interest between allocate such opportunities among the Collateral Manager’s duties to , its Affiliates, Clients of the Issuer under this Agreement Collateral Manager or its Affiliates and any other Persons with whom the interests Collateral Manager has entered into any co-investment arrangement, as applicable, in accordance with the allocation policy of the Collateral Manager, its Affiliates as such policy may be amended from time to time, and on a basis that the Collateral Manager determines in good faith is appropriate taking into consideration such factors as any allocation and/or co-investment policy agreed to with any such Persons, as applicable, and the contractual and legal duties owed to such Persons, as applicable, the primary investment mandates of each, the capital available to each, any restrictions on investment applicable thereto, the sourcing of the transaction, the size of the transaction, the amount of potential follow-on investing that may be required for such investment and the other investments held by each, the relation of such opportunity to the investment strategy thereof, reasons of portfolio balance, the remaining investment or its Related Personsreinvestment period thereof and any other consideration deemed relevant by the Collateral Manager in good faith. The Issuer hereby acknowledges Collateral Manager will use reasonable efforts to allocate investment opportunities across the Persons for which such opportunities are appropriate in a manner that various potential is fair and actual conflicts equitable over time and that the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with (1) its internal conflict of interest do and allocation policies (as the same may be amended from time to time, the “Internal Policies”), (2) any allocation and/or co-investment policy or may exist agreement entered into with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDCany such Person, as described in this Agreement each may be amended from time to time, and in (3) the Final Offering Circularrequirements of applicable law.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the The Collateral Manager is hereby authorized to may effect client cross-transactions Client cross Transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised Client of the Collateral Manager or any of its Affiliates at any time that the Collateral Manager believes such Transaction to be fair to the Issuer and its other Client. The Collateral Manager may direct the Issuer to acquire or dispose of Collateral Obligations in trades between the Issuer and other Clients of the Collateral Manager or its Affiliates in accordance with applicable contractual and regulatory requirements. In such case, the Collateral Manager and such Affiliates may have a potentially conflicting division of loyalties and responsibilities regarding the Issuer and the other parties to such trade. Under certain circumstances, the Collateral Manager and its Affiliates may determine that it is appropriate to avoid such conflicts by purchasing or selling a Collateral Obligation at a fair value that has been calculated pursuant to the Collateral Manager’s valuation procedures to another Client of the Collateral Manager or such Affiliates.
(e) In addition, in the future and with the prior blanket authorization of the Issuer, which can be revoked at any time thereafter, the Collateral Manager may enter into agency cross transactions where it or any of its Affiliates; provided thatAffiliates acts as broker for the Issuer and for the other party to the transaction, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with permitted under applicable law.
(ef) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securitiesAssets, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities Assets for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other termsIssuer. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Collateral Obligations and Eligible Investments included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Fifth Street Senior Floating Rate Corp.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. The Issuer and the Collateral Manager agree that compliance with the guidelines set forth in Annex A hereto, along with the requirements set forth in this Agreement, constitute reasonable steps aimed at ensuring that the Issuer does not become the owner of any asset the ownership of which could be found to cause the Issuer to be engaged or deemed to be engaged in a U.S. trade or business. Except as expressly permitted under the Indenture, no Assets (other than then any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price prices available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that Manager and furnished, in the Collateral Manager in Manager’s good faith believes that the compensation for such services rendered by such brokers and dealers complies belief, in compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”)) or, or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) is not availableapplicable, in compliance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth therein. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by Clients of the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets or opportunity for sale on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts Clients in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Collateral Manager (as such the same may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a2(b). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on on, and potentially after after, the Closing Date and that accounts advised or sub-advised by Date, a Client of the Collateral Manager or its Affiliates will be the Holder of the Subordinated Notes, and that at any time the Collateral Manager, Affiliates thereof or Clients of the Collateral Manager may acquire other Notes and that such investments classes of Notes, which may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests its duty to such Client. Any such Holder of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts Notes may dispose of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularsuch Notes at any time.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in herein, including, without limitation, Sections 3(a5(c) and 5(d), 3(b) compliance with applicable law and 3(e) and compliance with the covenants set forth in Section 5applicable provisions of the Indenture, the Collateral Manager is hereby authorized to may effect principal transactions and transactions where with the Issuer may invest in securities of issuers in which the Collateral Manager and/or or its Affiliates have (i) on an agency basis or (ii) on a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that principal basis where the Collateral Manager or any of its Affiliates may acquire sells assets to or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of purchases assets from the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Garrison Capital LLC)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation Obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is may not be available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission commissions or other expenses, as well as the availability of such Assets on or any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time and that the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that such decision is made the Issuer can be expected to be benefited by may benefit from relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and expenses, beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all is the investment adviser to the Transferor, which is the holder of a beneficial interest in the Outstanding Subordinated Class C Notes and the Interests on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential Persons and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularsuch other accounts.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-cross transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it the Collateral Manager or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of any such cross-cross transaction at the Issuer’s option without penaltypenalty on a prospective basis. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the board of directors of the Gxxxx BDC (as defined below), as designated manager of the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions described in the second sentence of Section 5 and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates or accounts managed by the Collateral Manager or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the IssuerIssuer subject to applicable law. Such investments may be the same similar or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors and issuers with respect to the Collateral Obligations included in the Assets.
(f) The Issuer agrees that neither the Collateral Manager nor any of its Affiliates is under any obligation to offer all investment opportunities of which they become aware to the Issuer or to account to the Issuer for (or share with the Issuer or inform the Issuer of) any such transaction or any benefit received by them from any such transaction. The Issuer understands that the Collateral Manager and/or its Affiliates may have, for their own accounts or for the accounts of others, portfolios with substantially the same portfolio criteria as are applicable to the Issuer. Furthermore, the Collateral Manager and/or its Affiliates may make an investment on behalf of any Client or on their own behalf without offering the investment opportunity or making any investment on behalf of the Issuer and, accordingly, investment opportunities may not be allocated among all such Clients. The Issuer acknowledges that affirmative obligations may arise in the future, whereby the Collateral Manager and/or its Affiliates are obligated to offer certain investments to Clients before or without the Collateral Manager’s offering those investments to the Issuer. The Issuer agrees that the Collateral Manager may make investments on behalf of the Issuer in securities or obligations that it has declined to invest in or enter into for its own account, the account of any of the Collateral Manager or its Affiliates or the account of any other Client.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC, Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any any
28983863 13 47427170.1 obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager Parties will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes they believe to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager Parties may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that that, none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager Parties may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager Parties or its their Affiliates by brokers and dealers which are not Affiliates of the Collateral ManagerManager Parties; provided that that, the Collateral Manager Parties in good faith believes believe that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager Parties may aggregate sales and purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager Parties or with accounts of the Affiliates of the Collateral ManagerManager Parties, if in the Collateral Manager’s Manager Parties’ reasonable judgment such aggregation can be expected to shall not result in an overall economic benefit detriment to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basisall circumstances that it considers relevant. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager Parties will be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Manager Parties (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit (or lack of detriment) to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time taking into consideration all circumstances that it considers relevant, (ii) under some circumstances, such allocation may adversely affect the Issuer can be expected with respect to be benefited by relatively better purchase the price or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing size of transactions or any combination of any of these and/or other factors the positions being sold to the Issuer and (iiiii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a)) herein. The Collateral Manager is expected to acquire all of the Subordinated Notes (including those Subordinated Notes that are not part of the U.S. Retention Interest) on the Closing Date and owns, and expects to continue to own, 100% of the membership interests in the Issuer. In addition, the Collateral Manager or any of its Affiliates may acquire Debt of the Issuer at any time for its own account. The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments investment(s) may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularinterest.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.is
Appears in 1 contract
Samples: Collateral Management Agreement (Nuveen Churchill Direct Lending Corp.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable lawbasis. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) Eligible Investment shall be purchased if such Assets Asset may give rise to any obligation or liability on the Issuer’s part to take any action (other than in connection with the elevation of participations to assignments) or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek use all commercially reasonable efforts to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any each Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuerconsidering all relevant circumstances. Subject to the preceding sentenceobjective of obtaining best execution, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence objective of this paragraph, obtaining best execution the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions Transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may also consider any factors it deems relevant in its sole discretion, including but not limited to the size of the Transaction, difficulty of execution, the operation facilities and reliability of the firm involved, the firm’s promptness of execution, adequacy of the firm’s trading infrastructure, technology and capital, quality of service rendered to the Collateral Manager in other transactions, confidentiality considerations, the firm’s financial stability and reputation, special execution capability, access to underwritten offerings, secondary markets and other investment opportunities, and the firm’s ability to accommodate any special execution or order handling requirements that may surround a particular Transaction. The Collateral Manager need not solicit competitive bids. The Collateral Manager may (but is not obligated to) aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment (as determined at the time of such aggregation) such aggregation can be expected to shall result in an overall economic benefit to the IssuerIssuer over time, taking into consideration all circumstances considered relevant by the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basisCollateral Manager. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager (and any of its Affiliates involved in such Transactions) will be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.8
Appears in 1 contract
Samples: Collateral Management Agreement
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it Manager shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) overall terms for all orders placed with respect to any Transactionthe Assets, in a manner permitted by law and in a manner it believes to be in considering all reasonable circumstances, including, if applicable, the best interests conditions or terms of early redemption of the IssuerSecurities, it being understood that the Collateral Manager has no obligation to obtain the lowest prices available. Subject to the preceding sentenceforegoing objective, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, take into consideration all factors the Collateral Manager mayreasonably determines to be relevant, in the allocation of businessincluding, take into consideration without limitation, timing, general relevant trends and research and other brokerage services and support equipment and services related thereto furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934or, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) of the Exchange Act is not availableapplicable, in accordance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth herein. Such services may be used by the Collateral Manager in connection with its the other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective operations of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time and/or its Affiliates. In addition, the Collateral Manager believesmay take into account available prices, rates of brokerage commissions and size and difficulty of the order, in its reasonable business judgmentaddition to other relevant factors (such as, without limitation, execution capabilities, reliability (based on total trading rather than individual trading), integrity, financial condition in general, execution and operational capabilities of competing brokers and/or dealers, and the value of the ongoing relationship with such brokers and/or dealers), without having to be appropriate and demonstrate that such factors are of a direct benefit to the Issuer in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) any specific transaction. The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be is subjective and will represent represents the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses commissions and beneficial timing of transactions or any a combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in good faith, and in accordance with the Collateral Manager Servicing Standard and in accordance with the standard of care set forth in Section 2(a)1 hereof, and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. The Issuer acknowledges Collateral Manager may aggregate sales and agrees that one purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or more with accounts of the Affiliates of the Collateral Manager if, in the Collateral Manager’s sole judgment, exercised in good faith, such aggregation will hold not have an adverse effect on the Issuer. When any such aggregate sales or beneficially own all purchase orders occur, the objective of the Outstanding Subordinated Notes on Collateral Manager (and potentially after any of its Affiliates involved in such transactions) shall be to allocate the Closing Date executions among the accounts in a manner fair and that equitable to all such accounts advised or sub-advised and generally to seek to allocate securities available for investment to all such accounts pro rata in proportion to the optimum amount sought by the Collateral Manager for each respective account. In connection with the foregoing, the objective of the Collateral Manager shall be to allocate investment opportunities and the purchases or its Affiliates may acquire other Notes and that such investments may give rise to conflicts sales of interest between instruments in a manner believed by the Collateral Manager, in good faith, taking into account the Collateral Manager’s duties Servicing Standard and in accordance with the standard of care set forth in Section 1 hereof, to be fair and equitable. In connection with any purchase of a portfolio of assets other than securities, the Issuer under this Agreement and the interests objective of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect Manager shall be to the Collateral Manager, including in its capacity as investment adviser for both the Issuer allocate such assets (and the BDC, as described in this Agreement and in the Final Offering Circular.
(daggregate purchase price paid for such assets) Subject to compliance with applicable laws and regulations and subject to the Indenture and among the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at clients (including the Issuer’s option without penalty. Such termination shall be effective upon receipt ) in a manner believed by the Collateral Manager of written notice from the Issuerto be fair and equitable. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager shall be fully protected with respect to any such allocation to the extent the Collateral Manager acts in good faith, taking into account the Collateral Manager’s Servicing Standard and in accordance with the standard of care set forth in Section 1 hereof, and without gross negligence, willful misconduct or reckless disregard of the obligations of the Issuer hereunder or under the terms of the Indenture. All purchases and sales of Eligible Investments and Collateral Debt Securities by the Collateral Manager on behalf of the Issuer shall be conducted in compliance with all applicable laws (including, without limitation, Section 206(3) of the Advisers Act) and the terms of the Indenture After (and excluding) the Closing Date, the Collateral Manager shall cause any purchase or sale of any Collateral Debt Security or Eligible Investment to be conducted on an arm’s-length basis or, if applicable, in compliance with Section 3(b) hereof.
(b) The Collateral Manager, subject to and in accordance with the terms and conditions of the Indenture, may effect direct trades between the Issuer and the Collateral Manager or any of its Affiliates may acquire acting as principal or sell obligations or securitiesagent (any such transaction, for its own account or for a “Related Party Trade”); provided, however, that a Related Party Trade after (and excluding) the accounts Closing Date other than Credit Risk/Defaulted Security Cash Purchases, sales of its customers, without either requiring or precluding the acquisition or sale of such obligations property or securities for in accordance with the account Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Issuer. Such investments Notes pursuant to Article 9 of the Indenture, may be effected only (i) upon disclosure to and with the same prior consent of an advisory committee containing at least one member independent from the Collateral Manager (whose affirmative vote will be required to grant such consent) acting as a surrogate for, and in the best interest of, the holders of the Securities that has been appointed from time to time as needed by the Issuer or different from those made by the Collateral Manager following the resignation of any member (the “Advisory Committee”) and based on behalf of the Advisory Committee’s determination that such transaction is on terms substantially as favorable to the Issuer as would be the case if a such transaction were effected with Persons not so affiliated with the Collateral Manager or any of its Affiliates, (ii) subject to directiona requirement that the purchase price in respect of any Collateral Debt Security acquired by the Issuer from a Seller pursuant to such a direct trade may not exceed the Principal Balance thereof, amountplus accrued and unpaid interest thereon (or, timing in the case of a Preferred Equity Security, all accrued and unpaid dividends or other termsdistributions not attributable to the return of capital by its governing documents) and (iii) if such purchase or sale, as the case may be, is in accordance with the terms of the Indenture. The Advisory Committee, if any, shall be formed subject to the Advisory Committee Guidelines attached hereto as Exhibit A (the “Advisory Committee Guidelines”). The Issuer acknowledges that consents and agrees that, if any transaction relating to the Issuer, including any transaction effected between the Issuer and the Collateral Manager or its Affiliates, shall be subject to the disclosure and its Affiliates may enter intoconsent requirements of Section 206(3) of the Advisers Act, for their own accounts or for the accounts of others, credit default swaps relating to obligors such requirements shall be satisfied with respect to the Issuer and all Holders of the Securities if disclosure shall be given to, and consent obtained from, the Advisory Committee. For avoidance of doubt, it is hereby understood and agreed by the parties hereto that no disclosure to, or consent of, the Advisory Committee shall be required with respect to Credit Risk/Defaulted Security Cash Purchases, sales of property or securities in accordance with the Origination Agreement and sales of Assets pursuant to an auction in connection with an Auction Call Redemption or in connection with a redemption of the Notes pursuant to Article 9 of the Indenture. Notwithstanding the foregoing, to the extent such provisions are determined not to satisfy the requirements of the Advisers Act, the Collateral Obligations included Manager shall take such actions in connection with any Related Party Trade as will satisfy the Assetsrequirements of Section 206(3) of the Advisers Act.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Gramercy Capital Corp)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price prices available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that Manager and furnished, in the Collateral Manager in Manager’s good faith believes that the compensation for such services rendered by such brokers and dealers complies belief, in compliance with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”)) or, or in the case of principal or fixed income transactions for which the “safe harbor” of if Section 28(e) is not availableapplicable, in compliance with the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services providedprovisions set forth therein. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by Clients of the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to shall result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets or opportunity for sale on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts Clients in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its the internal policies and procedures of the Collateral Manager (as such the same may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to will be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a2(b). The Issuer acknowledges and agrees that one or more Affiliates of that, on the Closing Date, the Collateral Manager will hold or beneficially own be the Holder of all of the Outstanding Subordinated Notes on and potentially after (including Subordinated Notes sufficient to satisfy its obligations as Retention Provider pursuant to the Closing Date terms of the Retention Letter), and that accounts advised or sub-advised by at any time the Collateral Manager Manager, Affiliates thereof or its Affiliates Clients thereof may acquire other Notes and that such investments classes of Notes, which may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and its duty to such other Clients. Any such Holder of Notes may dispose of such Notes at any time, except that the interests Collateral Manager shall not transfer its interest in any of the Collateral ManagerSubordinated Notes other than, subject to its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect obligations as Retention Provider to retain the Retained Amount pursuant to the Retention Letter, to an Affiliate; provided that the Subordinated Notes may only be transferred if the Collateral Manager, including Manager provides an Officer’s certificate or Opinion of Counsel that the Collateral Manager will be in its capacity as investment adviser for both compliance with the Issuer and registration requirements of the BDC, as described in this Agreement and in the Final Offering CircularAdvisers Act after giving effect to such transfer.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in herein, including, without limitation, Sections 3(a5(c) and 5(d), 3(b) compliance with applicable law and 3(e) compliance with the applicable provisions of the Indenture and the covenants set forth in Section 5terms of the exemptive relief granted to Xxxxxxxx Capital Inc. with respect to certain negotiated co-investment transactions, the Collateral Manager is hereby authorized to may effect principal transactions and transactions where with the Issuer may invest in securities of issuers in which the Collateral Manager and/or or its Affiliates have (i) on an agency basis or (ii) on a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that principal basis where the Collateral Manager or any of its Affiliates may acquire sells assets to or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of purchases assets from the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Garrison Capital Inc.)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable law. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations or Revolving Collateral Obligations) shall be purchased if such Assets may give rise to any obligation or liability on the Issuer’s part to take any action or make any payment other than at the Issuer’s option. Further, the Collateral Manager will not cause or allow the Issuer to acquire any obligation Obligation of a Portfolio Company.
(b) The Collateral Manager will seek to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuer. Subject to the preceding sentence, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account. In addition, subject to the first sentence of this paragraph, the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may aggregate sales and purchase orders placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment such aggregation can be expected to result in an overall economic benefit to the Issuer, taking into consideration the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basis. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager will be to use commercially reasonable efforts to allocate the executions among the accounts in a manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer may/can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all is the investment adviser to the Transferor, which is the holder of a beneficial interest in the Outstanding Subordinated Class C Notes, Class D Notes and the Interests on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential Persons and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circularsuch other accounts.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the board of directors of Gxxxx Capital Investment Corporation, as designated manager of the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates or accounts managed by the Collateral Manager or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customersClients, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the IssuerIssuer subject to applicable law. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors Obligors and issuers with respect to the Collateral Obligations included in the Assets.
(f) The Issuer agrees that neither the Collateral Manager nor any of its Affiliates is under any obligation to offer all investment opportunities of which they become aware to the Issuer or to account to the Issuer for (or share with the Issuer or inform the Issuer of) any such transaction or any benefit received by them from any such transaction. The Issuer understands that the Collateral Manager and/or its Affiliates may have, for their own accounts or for the accounts of others, portfolios with substantially the same portfolio criteria as are applicable to the Issuer. Furthermore, the Collateral Manager and/or its Affiliates may make an investment on behalf of any Client or on their own behalf without offering the investment opportunity or making any investment on behalf of the Issuer and, accordingly, investment opportunities may not be allocated among all such Clients. The Issuer acknowledges that affirmative obligations may arise in the future, whereby the Collateral Manager and/or its Affiliates are obligated to offer certain investments to Clients before or without the Collateral Manager’s offering those investments to the Issuer. The Issuer agrees that the Collateral Manager may make investments on behalf of the Issuer in securities or obligations that it has declined to invest in or enter into for its own account, the account of any of the Collateral Manager or its Affiliates or the account of any other Client.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital Investment Corp)
Purchase and Sale Transactions; Brokerage. (a) The Collateral Manager, subject to and in accordance with the Indenture, hereby agrees that it shall cause any Transaction to be conducted on terms and conditions negotiated on an arm’s-length basis and in accordance with applicable lawbasis. Except as expressly permitted under the Indenture, no Assets (other than any Delayed Drawdown Collateral Obligations Obligation or Revolving Collateral Obligations) Eligible Investment shall be purchased if such Assets Asset may give rise to any obligation or liability on the Issuer’s part to take any action (other than in connection with the elevation of participations to assignments) or make any payment other than at the Issuer’s option. Further, except in the case of Delayed Drawdown Collateral Manager will not cause Obligations or allow the Issuer to acquire any obligation of a Portfolio CompanyRevolving Collateral Obligations.
(b) The Collateral Manager will seek use all commercially reasonable efforts to obtain the best execution (but shall have no obligation to obtain the lowest price available) for all orders placed with respect to any each Transaction, in a manner permitted by law and in a manner it believes to be in the best interests of the Issuerconsidering all relevant circumstances. Subject to the preceding sentenceobjective of obtaining best execution, the Collateral Manager may, in the allocation of business, select brokers and/or dealers with whom to effect trades on behalf of the Issuer and may open cash trading accounts with such brokers and dealers; dealers (provided that none of the Assets may be credited to, held in or subject to the lien of the broker or dealer with respect to any such account). In addition, subject to the first sentence objective of this paragraph, obtaining best execution the Collateral Manager may, in the allocation of business, take into consideration research and other brokerage services furnished to the Collateral Manager or its Affiliates by brokers and dealers which are not Affiliates of the Collateral Manager; provided that the Collateral Manager in good faith believes that the compensation for such services rendered by such brokers and dealers complies with the requirements of Section 28(e) of the Securities Exchange Act of 1934, as amended (“Section 28(e)”), or in the case of principal or fixed income transactions Transactions for which the “safe harbor” of Section 28(e) is not available, the amount of the spread charged is reasonable in relation to the value of the research and other brokerage services provided. Such services may be used by the Collateral Manager in connection with its other advisory activities or investment operations. The Collateral Manager may also consider any factors it deems relevant in its sole discretion, including but not limited to the size of the Transaction, difficulty of execution, the operation facilities and reliability of the firm involved, the firm’s promptness of execution, adequacy of the firm’s trading infrastructure, technology and capital, quality of service rendered to the Collateral Manager in other transactions, confidentiality considerations, the firm’s financial stability and reputation, special execution capability, access to underwritten offerings, secondary markets and other investment opportunities, and the firm’s ability to accommodate any special execution or order handling requirements that may surround a particular Transaction. The Collateral Manager need not solicit competitive bids. The Collateral Manager may (but is not obligated to) aggregate sales and purchase orders of securities placed with respect to the Assets with similar orders being made simultaneously for other accounts managed by the Collateral Manager or with accounts of the Affiliates of the Collateral Manager, if in the Collateral Manager’s reasonable judgment (as determined at the time of such aggregation) such aggregation can be expected to shall result in an overall economic benefit to the IssuerIssuer over time, taking into consideration all circumstances considered relevant by the advantageous selling or purchase price, brokerage commission or other expenses, as well as the availability of such Assets on any other basis. In accounting for such aggregated order price, commissions and other expenses may be apportioned on a weighted average basisCollateral Manager. When a Transaction occurs as part of any aggregate sales or purchase orders, the objective of the Collateral Manager (and any of its Affiliates involved in such Transactions) will be to use commercially reasonable efforts to allocate the executions among the accounts in a an equitable manner that is fair and equitable and over time the Collateral Manager believes, in its reasonable business judgment, to be appropriate and in accordance with its internal policies and procedures (as such may be amended from time to time, the “Internal Policies”) and applicable law.
(c) The Issuer acknowledges and agrees that (i) the determination by the Collateral Manager of any benefit to the Issuer will be subjective and will represent the Collateral Manager’s evaluation at the time that the Issuer can be expected to be benefited by relatively better purchase or sales prices, lower brokerage commissions, lower transaction costs and expenses and beneficial timing of transactions or any combination of any of these and/or other factors and (ii) the Collateral Manager shall be fully protected with respect to any such determination to the extent the Collateral Manager acts in accordance with Section 2(a). The Issuer acknowledges and agrees that one or more Affiliates of the Collateral Manager will hold or beneficially own all of the Outstanding Subordinated Notes on and potentially after the Closing Date and that accounts advised or sub-advised by the Collateral Manager or its Affiliates may acquire other Notes and that such investments may give rise to conflicts of interest between the Collateral Manager’s duties to the Issuer under this Agreement and the interests of the Collateral Manager, its Affiliates or its Related Persons. The Issuer hereby acknowledges that various potential and actual conflicts of interest do or may exist with respect to the Collateral Manager, including in its capacity as investment adviser for both the Issuer and the BDC, as described in this Agreement and in the Final Offering Circular.
(d) Subject to compliance with applicable laws and regulations and subject to the Indenture and the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect client cross-transactions where the Collateral Manager causes a Transaction to be effected between the Issuer and another account advised by it or any of its Affiliates; provided that, if and to the extent required by the Advisers Act, such authorization is terminable prior to the initiation of such cross-transaction at the Issuer’s option without penalty. Such termination shall be effective upon receipt by the Collateral Manager of written notice from the Issuer. Subject to the Collateral Manager’s execution obligations described in Sections 3(a), 3(b) and 3(e) and the covenants set forth in Section 5, the Collateral Manager is hereby authorized to effect principal transactions and transactions where the Issuer may invest in securities of issuers in which the Collateral Manager and/or its Affiliates have a debt, equity or participation interest, in each case in accordance with applicable law.
(e) The Issuer acknowledges and agrees that the Collateral Manager or any of its Affiliates may acquire or sell obligations or securities, for its own account or for the accounts of its customers, without either requiring or precluding the acquisition or sale of such obligations or securities for the account of the Issuer. Such investments may be the same or different from those made on behalf of the Issuer as to direction, amount, timing or other terms. The Issuer acknowledges that the Collateral Manager and its Affiliates may enter into, for their own accounts or for the accounts of others, credit default swaps relating to obligors with respect to the Collateral Obligations included in the Assets.
Appears in 1 contract
Samples: Collateral Management Agreement (Barings Private Credit Corp)
