Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. (b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note. (c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof. (d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
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Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Collateral Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in December of each year commencing in 20202024, the Issuer shall cause to be delivered to the Collateral Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Collateral Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (Blue Owl Technology Finance Corp. II)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and (with copies to the Rating Agency Asset Manager) a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint such a successor to a firm of Independent certified public accountants which has resigned and provide such Issuer Order within 30 days after such resignation, the Issuer Asset Manager shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On For so long as any Rated Debt is Outstanding, on or before August 9th November 19 of each year year, commencing in 20202025, the Issuer shall cause to be delivered to the Collateral Trustee a statement report (an “Accountants’ Payment Date Report”) from a firm of Independent certified public accountants for each Distribution Report received since the last statement indicating (i) indicating that such firm has recalculated certain information in the preceding quarter’s Payment Date Report and applicable information from the Collateral Trustee and (ii) that the calculations within those Distribution Reports have such Payment Date Report has been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in Indenture. In the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.7, the determination by such firm of Independent certified public accountants shall be conclusive. To .
(c) In the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the event such firm of Independent certified public accountants appointed by the Issuer calculate requires the Collateral Trustee (or Collateral Administrator, as applicable) to agree to the procedures performed by such yield firm (with respect to maturity. The any of the reports or certificates of such firm), or sign any other agreement in connection therewith, the Collateral Trustee and/or Collateral Administrator shall, the Issuer hereby directs the Collateral Trustee and the Collateral Administrator, as applicable, to so agree to the terms and conditions requested by such firm of Independent accountants as a condition to receiving documentation required by this Indenture; it being understood and agreed that the Collateral Trustee and/or Collateral Administrator (as applicable) shall deliver such letter of agreement or other agreement in conclusive reliance on such direction and shall make no inquiry or investigation as to, and shall have no obligation or responsibility to calculate in respect of, the yield to maturity nor to verify terms of the accuracy engagement of such Independent certified public accountants’ calculationaccountants by the Issuer (or the Asset Manager on its behalf) or the sufficiency, validity or correctness of the agreed upon procedures in respect of such engagement. If In reliance upon such direction by the Issuer, the Collateral Trustee or Collateral Administrator is hereby authorized, without liability on its part, to execute and deliver any acknowledgement or other agreement with such firm of Independent accountants required for the Collateral Trustee (or Collateral Administrator, as applicable) to receive any of the certificates, reports or instructions provided for herein, which acknowledgement or agreement, to the extent so directed by the Issuer (or the Asset Manager on its behalf), may include, amongst other things, (i) acknowledgement that the Issuer has agreed that the procedures by the Independent accountants are sufficient for relevant purposes, (ii) releases by the Collateral Trustee (on behalf of itself and/or the Holders) or the Collateral Administrator of any claims, liabilities and expenses arising out of or relating to such Independent accountant’s engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Collateral Trustee or the Collateral Administrator be required to execute any agreement in respect of the Independent certified public accountants fails to calculate such yield to maturitythat the Collateral Trustee or the Collateral Administrator, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noteas applicable, determines in its sole discretion adversely affects it.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (Ares Capital Corp)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms Issuer hereby directs the Trustee and/or the Collateral Administrator to so agree, which acknowledgment or agreement may include, among other things, (i) acknowledgment of any engagement the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Trustee (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable including to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processHolders), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission It is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures. The Trustee and the Collateral Administrator shall not be required to make any such agreements that adversely affect the Bank in its individual capacity.
(b) On or before August 9th June 30th of each year commencing in 20202024, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Holder of the Notes upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in April and October of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.8, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a10.8(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
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Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms Borrower has appointed a firm of Independent independent certified public accountants of recognized international reputation accountants, independent auditors or independent consultants (together with its successors, the “Independent Accountants”), in each case reasonably acceptable to the Administrative Agent and the Required Lenders, for purposes of reviewing and delivering the reports or certificates of such accountants required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent certified public accountants Accountants at any time upon notice to, but without the consent of any Holder of Notesof, the Lenders. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint appoint, by Issuer Order a certificate of a Responsible Officer of the Borrower delivered to the Trustee Administrative Agent and the Rating Agency Custodian, a successor thereto that shall also be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants of recognized international reputationstanding, which may be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned Accountants within 30 thirty (30) days after such resignation, the Issuer Borrower shall promptly notify the Trustee Administrative Agent and the Collateral Manager of such failure in writing. If writing and the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee Collateral Manager shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountant of recognized international reputationstanding. The fees of such Independent certified public accountants Accountants and its any successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator Borrower.
(b) The Administrative Agent shall not have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants Accountants by the Issuer Borrower (or the Collateral Manager on behalf of the Issuerits behalf) or the terms of any agreed upon procedures in respect of such engagement; provided, however, however that the Trustee is hereby directed Administrative Agent shall be authorized, upon receipt of direction from the Borrower (or the Collateral Manager on its behalf) to execute an access letterany acknowledgement or other agreement with the Independent Accountants required for the Administrative Agent to receive any of the certificates, reports or instructions provided for in form and substance acceptable to this Agreement, which acknowledgement or agreement may include, among other things, (i) acknowledgement that the Trustee, with such Independent certified public accountants selected by the Issuer Borrower or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and has agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause procedures to be delivered to performed by the Trustee a statement from a firm of Independent certified public accountants Accountants are sufficient for the Borrower’s and each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and Lender’s purposes, (ii) listing releases by the Aggregate Principal Balance Administrative Agent (on behalf of itself and the Lenders) of claims against the Independent Accountants and acknowledgement of other limitations of liability in favor of the Assets Independent Accountants, and (iii) restrictions or prohibitions on the Aggregate Principal Balance disclosure of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; information or documents provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination it by such firm of Independent public accountants Accountants (including to the Administrative Agent and the Lenders). Notwithstanding the foregoing, in no event shall the Administrative Agent be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield required to maturity execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request Independent Accountants that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noteit reasonably determines adversely affects it.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecured Debt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (or Trustee and the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagementAdministrator to so agree; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures.
(b) On or before August 9th of May 30 in each year calendar year, commencing in 20202025, the Issuer shall cause to be delivered to the Trustee a statement and the Collateral Manager an agreed upon procedures report from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed recalculated and compared to the information provided by the Issuer in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding Determination Dates; provided provided, that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination finding by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Notebe conclusive.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Notean Interest (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes Interests with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms Borrower has appointed a firm of Independent independent certified public accountants of recognized international reputation accountants, independent auditors or independent consultants (together with its successors, the “Independent Accountants”), in each case reasonably acceptable to the Administrative Agent and the Required Lenders, for purposes of reviewing and delivering the reports or certificates of such accountants required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent certified public accountants Accountants at any time upon notice to, but without the consent of any Holder of Notesof, the Lenders. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint appoint, by Issuer Order a certificate of a Responsible Officer of the Borrower delivered to the Trustee Administrative Agent and the Rating Agency Collateral Agent, a successor thereto that shall also be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants of recognized international reputationstanding, which may be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned Accountants within 30 thirty (30) days after such resignation, the Issuer Borrower shall promptly notify the Trustee Agents and the Collateral Manager of such failure in writing. If writing and the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee Collateral Manager shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountant of recognized international reputationstanding. The fees of such Independent certified public accountants Accountants and its any successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresBorrower.
(b) On The Borrower or before August 9th of each year commencing in 2020, the Issuer shall Collateral Manager will cause to be delivered to the Trustee a statement from a firm of Independent certified nationally recognized independent public accountants for (who may also render other services to the Collateral Manager) to furnish to the Administrative Agent and each Distribution Report received since Lender (with a copy to the last statement Collateral Agent, the Collateral Administrator and the Backup Collateral Manager) once during each 365-day period ending on June 23rd of each calendar year, with the first such report due by no later than June 23, 2012, a report relating to such fiscal year to the effect that (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture such firm has applied certain agreed-upon procedures, and (ii) listing the Aggregate Principal Balance based on such examination, such firm is of the Assets opinion that the Monthly Reports and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Payment Date Reports for such year were prepared in compliance with this Agreement, except for such exceptions as of the immediately preceding Determination Dates; provided that it believes to be immaterial and such other exceptions as will be set forth in the event of a conflict between such firm of Independent certified public accountants and the Issuer firm’s report (including, with respect to any matter in this Section 10.9such exceptions, an explanation of how each such exception arose and reflecting the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect input/explanation of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteCollateral Manager thereto).
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Reports by Independent Accountants. (a) As of On or prior to the Closing Date, Date the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a resigned firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee on behalf of the Issuer shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither the Trustee nor the Collateral Administrator shall have any responsibility Any agreement pursuant to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with which such Independent certified public accountants selected by are appointed shall contain limited recourse and non-petition language as against the Issuer or Collateral Manager equivalent to that contained in which this Indenture. In the event such firm requires the Trustee shall to agree to not disclose the contents of any statement or reports received from procedures performed by such accountants other than as specified in such access letter; providedfirm, further, that the Issuer hereby directs the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, so agree; it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any no inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures.
(b) On or before August 9th the Business Day prior to the Payment Date occurring in July of each year (commencing in 2020on July, 2012), the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Administrator and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report indicating (i) that such firm has reviewed the Valuation Reports and Redemption Date Statements received since the last statement review and applicable information from the Trustee, (iii) indicating that the calculations within those Distribution Valuation Reports and Redemption Date Statements have been performed in accordance with the applicable provisions of this Indenture and (iiiii) listing the Aggregate Principal Balance Amount of the Assets and the Aggregate Principal Balance of the Collateral Pledged Obligations securing the Secured Notes as of the immediately preceding Determination DatesPayment Date; provided provided, however, that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.7, the determination by such firm of Independent certified public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from subclause (b) above shall be delivered (or otherwise made available) by the firm of Independent certified public accountants may be requested by Trustee to any Holder directly from such accountants. Upon of Class A Notes (or its designee) upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountantstherefor.
Appears in 1 contract
Samples: Indenture (FS Investment CORP)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither .
(b) On or before March 31st of each year, commencing in 2014, the Trustee nor Issuer shall cause to be delivered to the Trustee, the Collateral Administrator Manager, each Holder of the Notes upon written request therefor and each Rating Agency a statement from a firm of Independent certified public accountants for the Distribution Report prepared in April and October of the prior year (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Notes as of the relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive.
(c) Upon the written request of the Trustee, or any holder of an Interest, the Issuer will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any holder of Interests with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) The Trustee shall have any no responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, however that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process)be authorized, and without regard to any other provision upon receipt of this Indenturean Issuer Order directing the same, to execute any Holder, the Rating Agency acknowledgement or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to agreement with the contrary, Independent accountants required for the Trustee shall have no liability to receive any of the reports or responsibility instructions provided for taking any actionherein, which acknowledgement or omitting to take any actionagreement may include, if such action or omission is in accordance with this Section 10.9among other things, it being understood and (i) acknowledgement that the Issuer has agreed that the Trustee and/or procedures to be performed by the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of Independent accountants are sufficient for the Issuer’s purposes, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing releases by the Aggregate Principal Balance Trustee (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Assets Independent accountants, and (iii) restrictions or prohibitions on the Aggregate Principal Balance disclosure of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; information or documents provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination it by such firm of Independent public accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield required to maturity execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, Independent accountants that the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Notereasonably determines adversely affects it.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (NewStar Financial, Inc.)
Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the S&Pthe Rating Agency Agencies a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent certified public accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, however that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, provided further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the any Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.910.12, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th September 29th of each year commencing in 20202017, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.12, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “"original issue discount” " in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ ' calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a10.12(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 10.12 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of On or after the Closing Rating Effective Date, the Issuer Borrower (or the Collateral Manager on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Collateral Manager of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Manager shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
procedures or content of such letter (b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered including without limitation with respect to the Trustee a statement from a firm sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent be required to execute any agreement in respect of Independent certified public the accountants for each Distribution Report received since that it reasonably determines adversely affects it. For the last statement (iavoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent in connection with this Section 5.34(a) indicating that shall be payable by the calculations within those Distribution Reports have been performed Borrower as Administrative Expenses in accordance with the applicable provisions Priority of Payments and the terms of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteAgreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Credit Agreement (Golub Capital Private Credit Fund)
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Services Provider on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager Services Provider on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Services Provider of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Services Provider shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent in connection with this Section 5.34(a) shall be payable by the Borrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower, or the last Business Day immediately preceding such date if such date is not a Business Day, commencing in 20202022, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since occurring in January and July of the last statement prior calendar year (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.34, the determination by such firm of Independent independent public accountants shall be conclusive. To ; provided further that, if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent independent certified public accountants, the Borrower shall promptly notify the Agents and the Lenders and describe such inconsistency in reasonable detail. Notwithstanding anything to the contrary herein, if the Custodian, Administrative Agent, the Collateral Administrator or Collateral Agent fail within 75 days following the end of each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants appointed selected by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information Borrower prior to the beneficial owner or Holder delivery of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided report contemplated by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.this
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Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint appoint, by Issuer Order delivered to the Trustee and the Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 thirty (30) days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor the Collateral Administrator shall have any responsibility as directed to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or as provided in the Collateral Manager on behalf Priority of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2013), the Issuer shall cause to be delivered to the Trustee a statement from a firm Trustee, the Majority Representative, and the Rating Agency any USAP reports or reports required to be prepared by the Sponsor, the Originator or the Guarantor pursuant to Regulation AB under the Securities Act, if, and only if, such Regulation AB applies to the Issuer, in the year ending on such date (and, in the case of Independent certified public accountants for each Distribution Report received the first Accountants’ Report, since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteClosing Date).
(c) Upon As soon as available, and in any event within 90 days after the written request end of each fiscal year of the Trustee, or any Holder of a Subordinated NoteOriginator and the Guarantor, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder Majority Representative and the contact information Rating Agency audited consolidated financial statements of the Originator and the Guarantor for such accountantsfiscal year.
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Reports by Independent Accountants. (a) As of On the Closing Date, the Issuer (or the Collateral Advisor on behalf of the Issuer) shall appoint one or more firms a firm of Independent certified public accountants of recognized international reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesAgreement. Upon any removal of or resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Advisor on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, each Hedge Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer (or the Collateral Advisor on behalf of the Issuer) shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 thirty (30) days after such resignation, the Issuer (or the Collateral Advisor on behalf of the Issuer ) shall promptly notify each of the Trustee and each Hedge Counterparty of such failure in writingfailure. If the Issuer (or the Collateral Advisor on behalf of the Issuer ) shall not have appointed a successor within 10 ten (10) days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer in accordance with the Priority of Payments. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any Any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with letter appointing such Independent certified public accountants selected by shall contain appropriate limited recourse and non-petition language as against the Issuer or Collateral Manager in which the Trustee shall agree equivalent to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision contained in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresAgreement.
(b) No later than five (5) Business Days after the Closing Date, the Issuer shall deliver to each Rating Agency an agreed upon procedures letter from an Independent certified public accountant appointed by the Issuer in relation to the Issuer’s compliance with its obligations under this Agreement and the Trust Deed. On or before August 9th each of each year commencing in 2020the Closing Date and the Effective Date, the Issuer shall cause such Independent certified public accountant to be delivered deliver to each Rating Agency a report containing (i) a statement that the agreed upon procedures have been completed and (ii) such accountant’s findings with respect to the Trustee a statement from a firm Issuer’s compliance with its obligations under this Agreement and the Trust Deed. All expenses relating to the engagement of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions performance of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter services set forth in this Section 10.9, the determination by such firm of Independent public accountants 4.09(b) shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed borne by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteIssuer.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
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Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who and the Collateral Manager shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in July of each year commencing in 20202014, the Issuer shall cause to be delivered to the Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination DatesIndenture; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.8, the determination by such firm of Independent public accountants shall be conclusive. To .
(c) In the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that event the firm of Independent certified public accountants appointed requires the Bank, in any of its capacities including but not limited to the Collateral Administrator, to agree to the procedures performed by such firm or execute any agreement in order to access its report, the Issuer calculate hereby directs the Bank to so agree or execute any such yield to maturity. The Trustee agreement; it being understood and agreed that the Bank will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and the Bank shall make no inquiry or investigation as to, and shall have no responsibility to calculate obligation in respect of, the yield to maturity nor to verify the accuracy sufficiency, validity or correctness of such procedures. Without limiting the generality of the foregoing, it is further acknowledge and agreed that such letter of agreement may include, among other things, (i) acknowledgement that the Issuer has agreed that the procedures to be performed by the Independent certified public accountants are sufficient for the Issuer’s purposes, (ii) releases by the Trustee and/or Collateral Administrator (each on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants’ calculation. If , and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information (including to the beneficial owner or Holder Holders). Notwithstanding the foregoing, in no event shall the Bank in any of a Note.
(c) Upon the written request its capacities, be required to execute any agreement in respect of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereofthat it reasonably determines adversely affects it.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
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Samples: Indenture (KCAP Financial, Inc.)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, the Hedge Counterparty and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation provided in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures11.1.
(b) On or before August 9th December 31 of each year (commencing in 2020with December 31, 2006), the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Rating Agency an Accountants’ Report specifying the procedures applied and their associated findings with respect to the Monthly Reports prepared in the month in which a statement from Distribution Date occurs, the Ramp-Up Completion Date Report, the Note Valuation Reports and any Redemption Date Statements prepared in the preceding year. At least 90 days prior to the Distribution Date in [ ], 2006 (and, if at any time a successor firm of Independent certified public accountants for each is appointed, to the Distribution Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountants’ Report received since specifying in advance the last statement (i) indicating procedures that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm will apply in making the aforementioned findings throughout the term of Independent certified public its service as accountants and to the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturityIssuer. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy promptly forward a copy of such Independent certified public accountantsAccountants’ calculationReport to the Hedge Counterparty and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. If The Issuer shall not approve the firm institution of Independent certified public accountants fails such procedures if a Majority of the Controlling Class, by notice to calculate such yield to maturity, the Issuer and the Trustee shall have no responsibility to provide such information within 30 days after the date of the related notice to the beneficial owner or Holder of a NoteTrustee, object thereto.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from clause (b) above shall be delivered by the firm of Independent certified public accountants may be requested by Trustee to any Holder directly from such accountants. Upon of a Note shown on the Note Register or the Hedge Counterparty upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountantstherefor.
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Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency Agencies a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (or Trustee and the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagementAdministrator to so agree; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes Note with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
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Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecured Debt or Subordinated Securities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Collateral Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in FebruarySeptember of each year commencing in 202020202024, the Issuer shall cause to be delivered to the Collateral Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Collateral Trustee or any Holder holder of a Subordinated NoteSecurityPreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of the Subordinated Notes SecuritiesPreferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
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Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the . The Collateral Manager. The Issuer may , on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee and the Rating Agency Trustee, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or . If the Collateral Manager. If , on behalf of the Issuer Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Collateral Manager, on behalf of the Issuer, shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputationnational reputation and the Collateral Manager shall be responsible for the execution of any engagement letter or agreement as may be required by such firm. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer as provided in the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2013), the Issuer shall cause to be delivered to the Trustee and the Collateral Manager an Accountants’ Report specifying the procedures applied and the associated findings with respect to the Monthly Reports and any Redemption Date Statements prepared in the year ending on such date. If at any time a statement from a successor firm of Independent certified public accountants for each Distribution is appointed, prior to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee a draft of an (or form of) Accountant’s Report received since specifying in advance the last statement (i) indicating procedures that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm will be applying in making the aforementioned findings throughout the term of Independent certified public its service as accountants and to the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturityIssuer. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy promptly forward a copy of such Independent certified public accountants’ calculation. If the firm draft of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information an (or form of) Accountant’s Report to the beneficial owner or Holder of a NoteCollateral Manager.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
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Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither .
(b) On or before March 31st of each year, commencing in 2017, the Issuer shall cause to be delivered to the Trustee nor a statement from a firm of Independent certified public accountants for the Distribution Report prepared in May and November of the prior year (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Administrator Obligations securing the Notes as of the relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive.
(c) Upon the written request of the Trustee, or any holder of an Interest, the Issuer will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any holder of Interests with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) The Trustee shall have any no responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, however that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process)be authorized, and without regard to any other provision upon receipt of this Indenturean Issuer Order directing the same, to execute any Holder, the Rating Agency acknowledgement or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to agreement with the contrary, Independent accountants required for the Trustee shall have no liability to receive any of the reports or responsibility instructions provided for taking any actionherein, which acknowledgement or omitting to take any actionagreement may include, if such action or omission is in accordance with this Section 10.9among other things, it being understood and (i) acknowledgement that the Issuer has agreed that the Trustee and/or procedures to be performed by the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of Independent accountants are sufficient for the Issuer’s purposes, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing releases by the Aggregate Principal Balance Trustee (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Assets Independent accountants, and (iii) restrictions or prohibitions on the Aggregate Principal Balance disclosure of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; information or documents provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination it by such firm of Independent public accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield required to maturity execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereofIndependent accountants that the Trustee reasonably determines adversely affects it. In addition, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield not be required to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information forward or otherwise disclose to the beneficial owner Holders any report or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of statement received by Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from 10.9. In the firm of Independent certified public accountants may be requested by event a Holder wishes to request any Holder such report or statement, it must do so directly from such accountants. Upon written request from a Holder to the Trusteerequest, the Trustee shall provide to such the requesting Holder the contact information for such accountants. The Trustee shall not have any liability to any Holder relating to such accountant’s report or statement or the unavailability thereof.
Appears in 1 contract
Samples: Indenture (NewStar Financial, Inc.)
Reports by Independent Accountants. (a) As of On or before the Closing date which is 30 days after the ClosingRefinancing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, the Collateral Agent, the Loan Agent and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee Collateral Agent of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee Collateral Agent shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the Trustee nor event such firm requires the Collateral Agent and/or the Collateral Administrator shall have to agree to the procedures performed by such firm or execute an access letter or any responsibility agreement in order to make access its reports, which may contain a release of any inquiry claims, liabilities and expenses arising out of or investigation as torelating to such accountant’s engagement, and shall have no obligation in respect ofagreed-upon procedures or any report issued by such accountants under any such agreement, the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (Collateral Agent or the Collateral Manager on behalf of Administrator, as the Issuer) case may be, to so agree or the terms of execute any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letterletter or agreement; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or Collateral Agent and the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, Issuer and neither the Trustee Collateral Agent nor the Collateral Administrator shall make any no inquiry or investigation as to, or and shall have any no obligation in respect of, the validity sufficiency, validity, or correctness of such procedures. In addition, the Bank, the Trustee, the Collateral Agent, the Loan Agent and the Collateral Administrator shall be authorized, without liability on its part, to execute and deliver any acknowledgement, access letter, or other agreement with such firm of Independent accountants required for the Collateral Agent (or Collateral Administrator, as applicable) to receive any of the certificates, reports or instructions provided for herein, which acknowledgement, access letter, or agreement may include, among other things, (i) acknowledgement that the Issuer has agreed that the procedures to be performed by the Independent accountants are sufficient for relevant purposes, (ii) releases by the Collateral Agent (on behalf of itself and/or the Holders) and the Collateral Administrator of any claims, liabilities, and expenses arising out of or relating to such Independent accountant’s engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent accountants, and (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Collateral Agent or Collateral Administrator be required to execute any agreement, acknowledgement or access letter in respect of the Independent accountants that the Collateral Agent or the Collateral Administrator, as the case may be, reasonably determines may subject it to risk of expenses or liability for which it is not adequately indemnified or otherwise adversely affects it.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in January of each year commencing in 20202022, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Agent, the Loan Agent (for delivery to the Class A-1 Lenders) the Collateral Manager, and each Holder of the Notes upon written request therefor and the Rating Agency a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Collateral Agent (at the request of a Holder of a Subordinated NoteNotes), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Second Supplemental Indenture (Silver Point Specialty Lending Fund)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, the Collateral Administrator and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee and the Collateral Administrator of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. .
(b) On or before the 31st of December of each year, commencing in 2025, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for the Distribution Reports prepared in the prior year (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Debt as of the relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.10, the determination by such firm of Independent public accountants shall be conclusive.
(c) Upon the written request of the Trustee, or any holder of a Subordinated Note, the Issuer will cause the firm of Independent certified public accountants appointed pursuant to Section 10.10(a) to provide any holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, however that the Trustee is and the Collateral Administrator shall be authorized, and are hereby directed (and shall have no liability or responsibility), to execute an any acknowledgement, access letterletter or other agreement with the Independent accountants required for the Trustee or the Collateral Administrator to receive any of the reports or instructions provided for herein, which acknowledgement, access letter or agreement may include, among other things, (i) acknowledgement that the Issuer has agreed that the procedures to be performed by the Independent accountants are sufficient for the Issuer’s purposes, (ii) releases by each of the Trustee and the Collateral Administrator (on behalf of itself and/or the Holders) of claims against the accountants and acknowledgment of any other limitations of liability in favor of the accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which no event shall the Trustee shall agree or the Collateral Administrator be required to not disclose execute any agreement in respect of the contents of any statement Independent accountants that the Trustee or reports received from such accountants other than as specified in such access letter; providedthe Collateral Administrator reasonably determines adversely affects it. In addition, further, that the Trustee shall not deliver under be required to forward or otherwise disclose to the Holders any circumstances (other than as compelled report or statement received by legal or regulatory process), and without regard Independent accountants appointed pursuant to any other provision of this Indenture, Section 10.10. In the event a Holder wishes to any Holder, the Rating Agency or other party request any such statement report or report received statement, it must do so directly from such accountants. A Upon request, the Trustee shall provide to the requesting Holder may only obtain the contact information for such accountants. The Trustee shall not have any liability to any Holder relating to such accountant’s report or statement or report directly from such accountantsthe unavailability thereof. Notwithstanding any provision in this Indenture to the contrary, the Trustee and the Collateral Administrator shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.910.10, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall will deliver such acknowledgement, agreement or access letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms of CMSI hereby appoints KPMG Peat Marwick LLP as its Independent certified public accountants of recognized international reputation Accountants for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSection 3.09. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) CMSI shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants Accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer CMSI shall fail fall to appoint a successor to a firm of Independent certified public accountants Accountants which has resigned within 30 15 days after such resignation, the Issuer CMSI shall promptly notify the Trustee of such failure in writing. If the Issuer CMSI shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountants of recognized international national reputation. The fees of such Independent certified public accountants Accountants and its any such successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation CMSI as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionServicer, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduressuccessor Servicer.
(b) On or before August 9th March 31 in relation to the Affiliated Mortgage Loans and September 30 in relation to the Third Party Mortgage Loans of each year commencing in 2020(each, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution "Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance Date"), beginning with the applicable provisions of this Indenture March 31 and (ii) listing September 30, respectively in the Aggregate Principal Balance year which begins not less than three months after the date of the Assets and the Aggregate Principal Balance initial issuance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9Certificates, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereofCMSI, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturityat its expense, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants Accountants appointed pursuant to Section 10.9(a3.09
(a) (who may also render other services to CMSI) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or furnish a report delivered to the Trustee pursuant and to the Insurer to the effect that such firm has examined certain documents and records relating to the servicing of mortgage loans under pooling and servicing agreements substantially similar to this Section 10.9 from Pooling Agreement (which agreements shall be described in a schedule to such statement), and that such examination, which has been conducted substantially in compliance with the firm audit guide for audits of Independent certified non-supervised mortgagees approved by the Department of Housing and Urban Development, the Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for Mortgage serviced by FHLMC for use by independent public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder (to the Trusteeextent that the procedures in such audit guide are applicable to the servicing obligations set forth in such agreements), has disclosed no items of noncompliance with the Trustee shall provide to provisions of this Pooling Agreement which, in the opinion of such Holder the contact information firm, are material, except for such accountantsitems of noncompliance as shall be set forth in such report. For purposes of such report, such firm may conclusively presume that any pooling and servicing agreement which governs certificates offered under a common registration statement under the Act, covering the CitiCertificates or similar certificates with the CitiCertificates is substantially similar to the Pooling Agreement, unless such other pooling and servicing agreement expressly states otherwise.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citicorp Mortgage Securities Inc)
Reports by Independent Accountants. (a) As Prior to the delivery of any reports of accountants required to be prepared to be pursuant to the Closing Dateterms hereof, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation Issuer as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresAdministrative Expense.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NotePartnership Interest, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a10.7(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 7.13 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may Loan Obligation Manager, on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Loan Obligation Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee and the Rating Agency Trustee, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer Loan Obligation Manager, on behalf of the Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Loan Obligation Manager, on behalf of the Issuer, shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer as provided in the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2018), the Issuer shall cause to be delivered to the Trustee and the Loan Obligation Manager an Accountants’ Report specifying the procedures applied and the associated findings with respect to the Monthly Reports and any Redemption Date Statements prepared in the year ending on such date. If at any time a statement from a successor firm of Independent certified public accountants for each Distribution is appointed, prior to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee a draft of an (or form of) Accountant’s Report received since specifying in advance the last statement (i) indicating procedures that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm will be applying in making the aforementioned findings throughout the term of Independent certified public its service as accountants and to the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturityIssuer. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy promptly forward a copy of such Independent certified public accountants’ calculation. If the firm draft of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information an (or form of) Accountant’s Report to the beneficial owner or Holder of a NoteLoan Obligation Manager.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Arbor Realty Trust Inc)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and (with copies to the Rating Agency Asset Manager) a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint such a successor to a firm of Independent certified public accountants which has resigned and provide such Issuer Order within 30 days after such resignation, the Issuer Asset Manager shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On For so long as any Rated Notes are Outstanding, on or before August 9th May 25 of each year year, commencing in 20202025, the Issuer shall cause to be delivered to the Trustee a statement report (an "Accountants' Payment Date Report") from a firm of Independent certified public accountants for each Distribution Report received since the last statement indicating (i) indicating that such firm has recalculated certain information in the preceding quarter's Payment Date Report and applicable information from the Trustee and (ii) that the calculations within those Distribution Reports have such Payment Date Report has been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in Indenture. In the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.7, the determination by such firm of Independent certified public accountants shall be conclusive. To .
(c) In the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the event such firm of Independent certified public accountants appointed by the Issuer calculate requires the Trustee (or Collateral Administrator, as applicable) to agree to the procedures performed by such yield firm (with respect to maturity. The any of the reports or certificates of such firm), or sign any other agreement in connection therewith, the Trustee and/or Collateral Administrator shall, the Issuer hereby directs the Trustee and the Collateral Administrator, as applicable, to so agree to the terms and conditions requested by such firm of Independent accountants as a condition to receiving documentation required by this Indenture; it being understood and agreed that the Trustee and/or Collateral Administrator (as applicable) shall deliver such letter of agreement or other agreement in conclusive reliance on such direction and shall make no inquiry or investigation as to, and shall have no obligation or responsibility to calculate in respect of, the yield to maturity nor to verify terms of the accuracy engagement of such Independent certified public accountants’ calculationaccountants by the Issuer (or the Asset Manager on its behalf) or the sufficiency, validity or correctness of the agreed upon procedures in respect of such engagement. If In reliance upon such direction by the Issuer, the Trustee or Collateral Administrator is hereby authorized, without liability on its part, to execute and deliver any acknowledgement or other agreement with such firm of Independent accountants required for the Trustee (or Collateral Administrator, as applicable) to receive any of the certificates, reports or instructions provided for herein, which acknowledgement or agreement, to the extent so directed by the Issuer (or the Asset Manager on its behalf), may include, amongst other things, (i) acknowledgement that the Issuer has agreed that the procedures by the Independent accountants are sufficient for relevant purposes, (ii) releases by the Trustee (on behalf of itself and/or the Holders) or the Collateral Administrator of any claims, liabilities and expenses arising out of or relating to such Independent accountant's engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee or the Collateral Administrator be required to execute any agreement in respect of the Independent certified public accountants fails to calculate such yield to maturity, that the Trustee shall have no responsibility to provide such information to or the beneficial owner or Holder of a NoteCollateral Administrator, as applicable, determines in its sole discretion adversely affects it.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Ares Capital Corp)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, the Hedge Counterparty and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation provided in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures11.1.
(b) On or before August 9th December 31 of each year (commencing in 2020with December 31, 2006), the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Rating Agency an Accountants’ Report specifying the procedures applied and their associated findings with respect to the Monthly Reports prepared in the month in which a statement from Distribution Date occurs, the Ramp-Up Completion Date Report, the Note Valuation Reports and any Redemption Date Statements prepared in the preceding year. At least 90 days prior to the Distribution Date in July, 2006 (and, if at any time a successor firm of Independent certified public accountants for each is appointed, to the Distribution Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountants’ Report received since specifying in advance the last statement (i) indicating procedures that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm will apply in making the aforementioned findings throughout the term of Independent certified public its service as accountants and to the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturityIssuer. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy promptly forward a copy of such Independent certified public accountantsAccountants’ calculationReport to the Hedge Counterparty and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. If The Issuer shall not approve the firm institution of Independent certified public accountants fails such procedures if a Majority of the Controlling Class, by notice to calculate such yield to maturity, the Issuer and the Trustee shall have no responsibility to provide such information within 30 days after the date of the related notice to the beneficial owner or Holder of a NoteTrustee, object thereto.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from clause (b) above shall be delivered by the firm of Independent certified public accountants may be requested by Trustee to any Holder directly from such accountants. Upon of a Note shown on the Note Register or the Hedge Counterparty upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountantstherefor.
Appears in 1 contract
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the . The Collateral Manager. The Issuer may , on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee Trustee, each Hedge Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be national reputation and shall provide notice to a firm designated representative of Independent certified public accountants that performs accounting services for the Issuer or Controlling Class. If the Collateral Manager. If , on behalf of the Issuer Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 thirty (30) days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Collateral Manager, on behalf of the Issuer, shall not have appointed a successor within 10 ten (10) days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor as provided in the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within sixty (60) days after December 31 of each year (commencing in 2020with December 31, 2006), the Issuer shall cause to be delivered to the Trustee, the Collateral Manager and each Rating Agency an Accountants’ Report specifying the procedures applied and the associated findings with respect to the Monthly Reports, the Notes Valuation Reports and any Redemption Date Statements prepared in the year ending on such date. At least sixty (60) days prior to the Payment Date in April 2007 (and, if at any time a successor firm of Independent certified public accountants is appointed, to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant’s Report specifying in advance the procedures that such firm will apply in making the aforementioned findings throughout the term of its service as accountants to the Issuer. The Trustee shall promptly forward a statement from copy of such Accountant’s Report to the Collateral Manager and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. The Issuer shall not approve the institution of such procedures if a Majority of the Aggregate Outstanding Amount of Notes of the Controlling Class, by written notice to the Issuer and the Trustee within thirty (30) days after the date of the related notice to the Trustee, object thereto.
(c) If any Hedge Counterparty is required to post collateral pursuant to the related Hedge Agreement during any Due Period, then on or prior to the Payment Date following such Due Period and on or prior to each anniversary of such Payment Date the Issuer shall cause a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating to review and verify that the calculations within those Distribution Reports have been performed value of collateral posted is in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noterelated Hedge Agreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Gramercy Capital Corp)
Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On On(x) Prior to the Refinancing Date, on or before August 9th of each year commencing in 2020, and (y) after the Refinancing Date, on or before April 27th of each year commencing in 2023 the Issuer shall cause to be delivered to the Trustee and the Class A-1L Loan Agent a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes NotesDebt as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Supplemental Indenture (AB Private Credit Investors Corp)
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Collateral Manager on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Collateral Manager of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Manager shall appoint a successor firm of Independent independent certified public accountants of recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower's purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm, and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower commencing in 20202014, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since the last statement (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.36, the determination by such firm of Independent independent public accountants shall be conclusive. To ; provided further that, if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent independent certified public accountants, the Borrower shall promptly notify the Administrative Agent and the Lenders and describe such inconsistency in reasonable detail. In the event such independent certified public accountants appointed by require the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturityCustodian, the Trustee shall have no responsibility Administrative Agent or the Collateral Agent to provide such information agree to the beneficial owner or Holder of a Note.
(c) Upon the written request procedures to be performed by such firm in any of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information reports required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee prepared pursuant to this Section 10.9 from 5.36(b), the firm Borrower shall direct the Custodian, the Administrative Agent or the Collateral Agent in writing to so agree. Notwithstanding anything to the contrary herein, if the Custodian, Administrative Agent or Collateral Agent fail within 75 days following the end of Independent each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants may be requested selected by any Holder directly from such accountants. Upon written request from a Holder the Borrower prior to the Trusteedelivery of any report contemplated by this Section 5.36(b), then the Trustee Borrower shall provide have no obligation to furnish any report covering such Holder the contact information for such accountantsfiscal year pursuant to this Section 5.36(b).
Appears in 1 contract
Samples: Credit Agreement (Fifth Street Senior Floating Rate Corp.)
Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms Borrower has appointed a firm of Independent independent certified public accountants of recognized international reputation accountants, independent auditors or independent consultants (together with its successors, the “Independent Accountants”), in each case reasonably acceptable to the Administrative Agent and the Required Lenders, for purposes of reviewing and delivering the reports or certificates of such accountants required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent certified public accountants Accountants at any time upon notice to, but without the consent of any Holder of Notesof, the Lenders. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint appoint, by Issuer Order a certificate of a Responsible Officer of the Borrower delivered to the Trustee Administrative Agent and the Rating Agency Custodian, a successor thereto that shall also be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants of recognized international reputationstanding, which may be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned Accountants within 30 thirty (30) days after such resignation, the Issuer Borrower shall promptly notify the Trustee Administrative Agent and the Collateral Manager of such failure in writing. If writing and the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee Collateral Manager shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountant of recognized international reputationstanding. The fees of such Independent certified public accountants Accountants and its any successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator Borrower.
(b) [Reserved].
(c) The Administrative Agent shall not have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants Accountants by the Issuer Borrower (or the Collateral Manager on behalf of the Issuerits behalf) or the terms of any agreed upon procedures in respect of such engagement; provided, however, however that the Trustee is hereby directed Administrative Agent shall be authorized, upon receipt of direction from the Borrower (or the Collateral Manager on its behalf) to execute an access letterany acknowledgement or other agreement with the Independent Accountants required for the Administrative Agent to receive any of the certificates, reports or instructions provided for in form and substance acceptable to this Agreement, which acknowledgement or agreement may include, among other things, (i) acknowledgement that the Trustee, with such Independent certified public accountants selected by the Issuer Borrower or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and has agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause procedures to be delivered to performed by the Trustee a statement from a firm of Independent certified public accountants Accountants are sufficient for the Borrower’s and each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and Lender’s purposes, (ii) listing releases by the Aggregate Principal Balance Administrative Agent (on behalf of itself and the Lenders) of claims against the Independent Accountants and acknowledgement of other limitations of liability in favor of the Assets Independent Accountants, and (iii) restrictions or prohibitions on the Aggregate Principal Balance disclosure of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; information or documents provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination it by such firm of Independent public accountants (including to the Administrative Agent and the Lenders). Notwithstanding the foregoing, in no event shall the Administrative Agent be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield required to maturity execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request Independent accountants that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noteit reasonably determines adversely affects it.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Capitala Finance Corp.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither .
(b) On or before March 31st of each year, commencing in 2017, the Issuer shall cause to be delivered to the Trustee nor a statement from a firm of Independent certified public accountants for the Distribution Report prepared in May and November of the prior year (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Administrator Obligations securing the Notes as of the relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.10, the determination by such firm of Independent public accountants shall be conclusive.
(c) Upon the written request of the Trustee, or any holder of an Interest, the Issuer will cause the firm of Independent certified public accountants appointed pursuant to Section 10.10(a) to provide any holder of Interests with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) The Trustee shall have any no responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, however that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process)be authorized, and without regard to any other provision upon receipt of this Indenturean Issuer Order directing the same, to execute any Holder, the Rating Agency acknowledgement or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to agreement with the contrary, Independent accountants required for the Trustee shall have no liability to receive any of the reports or responsibility instructions provided for taking any actionherein, which acknowledgement or omitting to take any actionagreement may include, if such action or omission is in accordance with this Section 10.9among other things, it being understood and (i) acknowledgement that the Issuer has agreed that the Trustee and/or procedures to be performed by the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of Independent accountants are sufficient for the Issuer’s purposes, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing releases by the Aggregate Principal Balance Trustee (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Assets Independent accountants, and (iii) restrictions or prohibitions on the Aggregate Principal Balance disclosure of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; information or documents provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination it by such firm of Independent public accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield required to maturity execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereofIndependent accountants that the Trustee reasonably determines adversely affects it. In addition, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield not be required to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information forward or otherwise disclose to the beneficial owner Holders any report or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of statement received by Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from 10.10. In the firm of Independent certified public accountants may be requested by event a Holder wishes to request any Holder such report or statement, it must do so directly from such accountants. Upon written request from a Holder to the Trusteerequest, the Trustee shall provide to such the requesting Holder the contact information for such accountants. The Trustee shall not have any liability to any Holder relating to such accountant’s report or statement or the unavailability thereof.
Appears in 1 contract
Samples: Indenture (NewStar Financial, Inc.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who and the Collateral Manager shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before the date which is 30 days after the Payment Date occurring in August 9th of each year commencing in 20202013, the Issuer shall cause to be delivered to the Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in February and August of each year (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.8, the determination by such firm of Independent public accountants shall be conclusive. To .
(c) In the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that event the firm of Independent certified public accountants appointed requires the Bank, in any of its capacities including but not limited to the Collateral Administrator, to agree to the procedures performed by such firm or execute any agreement in order to access its report, the Issuer calculate hereby directs the Bank to so agree or execute any such yield to maturity. The Trustee agreement; it being understood and agreed that the Bank will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and the Bank shall make no inquiry or investigation as to, and shall have no responsibility to calculate obligation in respect of, the yield to maturity nor to verify the accuracy sufficiency, validity or correctness of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noteprocedures.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (TICC Capital Corp.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the Trustee nor event such firm requires the Collateral Administrator Bank in any of its capacities to agree to the procedures performed by such firm, the Issuer hereby directs the Bank to so agree, which acknowledgment or agreement may include, among other things, (i) acknowledgment of the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Bank (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants (including to the Holders). It is understood and agreed that the Bank will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and the Bank shall have any responsibility to not make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank shall not be required to make any such agreements that adversely affect the Bank in its individual capacity.
(b) On or before August 9th December 31 of each year commencing in 20202021, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Holder of the Notes upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in January and July of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer (or the Collateral Manager on its behalf) shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer shall (or after consultation with the Collateral Manager on behalf Manager) propose a replacement firm meeting the criteria set forth in the preceding sentence for approval by a Majority of the Issuer) Controlling Class. Upon approval by a Majority of the Controlling Class, the Issuer shall promptly appoint such firm by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputationTrustee, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or each Hedge Counterparty, the Collateral ManagerManager and each Rating Agency. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation Issuer as to, and shall have no obligation provided in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures11.1.
(b) On or before August 9th May 31 of each year (commencing in 2020with May 31, 2007), the Issuer shall cause to be delivered to the Trustee Trustee, the PAA Issued Note Paying Agent and each Rating Agency an Accountant’s Report specifying the procedures applied and their associated findings with respect to the Note Valuation Reports and any Redemption Date Statements prepared in the preceding year. At least 60 days prior to the Payment Date in May 2007 (and, if at any time a statement from a successor firm of Independent certified public accountants for each Distribution is appointed, prior to the Payment Date in August following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant’s Report received since specifying in advance the last statement (i) indicating procedures that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm will apply in making the aforementioned findings throughout the term of Independent certified public its service as accountants and to the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturityIssuer. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy promptly forward a copy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails Accountant’s Report to calculate such yield to maturityeach Hedge Counterparty, the Trustee Rating Agencies, the PAA Issued Note Paying Agent and each Holder of Class A Senior Notes (or, if no Class A Senior Notes are Outstanding, each Holder of Class A-2 Notes or, if no Class A Notes are Outstanding, each Holder of Class B Notes or, if no Class B Notes are Outstanding, each Holder of Class C Notes or, if no Class C Notes are Outstanding, each Holder of Class D Notes or, if no Class D Notes are Outstanding, each Holder of Class E Notes or, if no Class E Notes are Outstanding, each Holder of Class F Notes or, if no Class F Notes are Outstanding, each Holder of Class G Notes or, if no Class G Notes are Outstanding, each Holder of Class H Notes or, if no Class H Notes are Outstanding, each Holder of Class J Notes or, if no Class J Notes are Outstanding, each Holder of Class K Notes), at the address shown on the Note Register. The Issuer shall have no responsibility to provide not approve the institution of such information procedures if a Majority of the Controlling Class or the Collateral Manager, by notice to the beneficial owner or Holder Issuer and the Trustee within 30 days after the date of a Notethe related notice to the Trustee, object thereto.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from 10.13(b) above shall be made available by the firm of Independent certified public accountants may be requested by Trustee to any Holder directly from such accountants. Upon of a Rated Note shown on the Note Register upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountantstherefor.
Appears in 1 contract
Samples: Indenture (Northstar Realty)
Reports by Independent Accountants. (a) As of On or prior to the Closing Date, the Issuer Borrower shall appoint one or more firms of Independent independent certified public accountants accountants, independent auditors or independent consultants of recognized international reputation (together with its successors, the “Independent Accountants”) for purposes of reviewing and delivering the reports or certificates of such accountants required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Investment Manager. The Issuer Borrower may remove any firm of Independent certified public accountants Accountants at any time upon notice to, but without the consent of any Holder of Notesof, the Lenders and the Collateral Agent. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerInvestment Manager) shall promptly appoint by Issuer Order a certificate of a Responsible Officer of the Borrower delivered to the Trustee Collateral Agent and the Rating Agency DBRS a successor thereto that shall also be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants of recognized international reputation, which may be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Investment Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of the Independent certified public accountants Accountant which has resigned within 30 thirty days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee Borrower shall promptly notify the Collateral Manager, who Agent and the Investment Manager of such failure in writing and the Investment Manager shall appoint a successor firm of Independent certified public accountants Accountant of recognized international reputation. The fees of such Independent certified public accountants Accountants and its any successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresBorrower.
(b) On Annually, on or before August 9th the business day immediately preceding the Payment Date occurring in July of each year year, commencing in 20202013, the Issuer Borrower shall cause to be delivered to the Trustee Agents, the Investment Manager, each Lender upon written request therefor and DBRS a statement from a firm of Independent certified public accountants Accountants for each Distribution Payment Date Report received since the last statement (i) indicating that the calculations within those Distribution Payment Date Reports have been performed in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets Collateral Obligations and the Aggregate Principal Balance principal balance and/or other relevant information relating to the value of the all other Collateral Obligations securing the Secured Notes as of the each immediately preceding Determination DatesDate; provided that in the event of a conflict between such firm of Independent certified public accountants Accountants and the Issuer Borrower with respect to any matter in this Section 10.98.08, the determination by such firm of Independent public accountants Accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (TPG Specialty Lending, Inc.)
Reports by Independent Accountants. (a) As of On or about the 2024 Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing recalculation and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer.
(b) On or before September 17 of each year commencing in 2025, the Collateral Manager on behalf of the Issuer shall cause to be delivered to the Collateral Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that such firm has performed or agreed upon procedures to recalculate certain calculations within the Distribution Reports provided by the Issuer to assist in determining whether such calculations have been performed in accordance with the applicable provisions of this Indenture and (ii) recalculating the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Debt as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer or Collateral Manager with respect to any matter in this Section 10.9 (Reports by Independent Accountants), the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of Debt requests the yield to maturity in respect of the relevant Debt in order to determine any "original issue discount" in respect thereof, 223 the Collateral Trustee may request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Collateral Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants' calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Collateral Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of Debt.
(c) Upon the written request of the Collateral Trustee, or any Holder or beneficial owner of a Subordinated Note, the Collateral Manager on behalf of the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) (Reports by Independent Accountants) to provide any Holder or beneficial owner of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 (Certain Tax Matters) or assist the Issuer in the preparation thereof.
(d) Neither the Collateral Trustee nor the Collateral Administrator shall have any responsibility to the Issuer or the Secured Parties hereunder to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement); provided, however, that the Collateral Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer to execute any acknowledgment or other agreement with the Independent accountants required for the Collateral Manager Trustee to receive any of the reports or instructions provided for herein, which acknowledgment or agreement may include, among other things, (i) acknowledgment of the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Collateral Trustee (on behalf of itself and the Holders and beneficial owners) of claims against the Independent accountants and acknowledgment of other limitations of liability in which favor of the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process)Independent accountants, and without regard (iii) restrictions or prohibitions on the disclosure of information or documents provided to any other provision it by such firm of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture Independent accountants (including to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission Holders). It is in accordance with this Section 10.9, it being understood and agreed that the Collateral Trustee and/or the Collateral Administrator, as the case may be, shall will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator Trustee shall make any no inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the . The Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information not be required to be provided by make any such agreements that adversely affect the Issuer pursuant to Section 7.17 or assist the Issuer Bank in the preparation thereofits individual capacity.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in September of each year commencing in 20202024, the Issuer shall cause to be delivered to the Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (Blue Owl Capital Corp II)
Reports by Independent Accountants. (a) As of On or prior to the Closing Date, Date the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a resigned firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee on behalf of the Issuer shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither the Trustee nor the Collateral Administrator shall have any responsibility Any agreement pursuant to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with which such Independent certified public accountants selected by are appointed shall contain limited recourse and non-petition language as against the Issuer or Collateral Manager equivalent to that contained in which this Indenture. In the event such firm requires the Trustee shall to agree to not disclose the contents of any statement or reports received from procedures performed by such accountants other than as specified in such access letter; providedfirm, further, that the Issuer hereby directs the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, so agree; it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any no inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures.
(b) On or before August 9th the Business Day prior to the Payment Date occurring in July of each year (commencing in 2020July 2012), the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Administrator and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report indicating (i) that such firm has reviewed the Valuation Reports and Redemption Date Statements received since the last statement review and applicable information from the Trustee, (iii) indicating that the calculations within those Distribution Valuation Reports and Redemption Date Statements have been performed in accordance with the applicable provisions of this Indenture and (iiiii) listing the Aggregate Principal Balance Amount of the Assets and the Aggregate Principal Balance of the Collateral Pledged Obligations securing the Secured Notes as of the immediately preceding Determination DatesPayment Date; provided provided, however, that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.7, the determination by such firm of Independent certified public accountants shall be conclusive. To In the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of event such Independent certified public accountants appointed require the Trustee, the Collateral Administrator or the Collateral Manager to agree to the procedures to be performed by such firm in any of the reports required to be prepared pursuant to this Section 10.7, the Issuer calculate shall direct the Trustee, the Collateral Administrator or the Collateral Manager in writing to so agree; it being understood and agreed that the Trustee, the Collateral Administrator or the Collateral Manager shall deliver such yield to maturity. The Trustee letter of agreement in conclusive reliance upon the direction of the Issuer, and the Issuer has not made any independent inquiry or investigation as to, and shall have no responsibility to calculate obligation or liability in respect of, the yield to maturity nor to verify the accuracy sufficiency, validity or correctness of such Independent certified public accountants’ calculationprocedures. If Notwithstanding anything to the firm contrary herein, if the Trustee, the Collateral Administrator or the Collateral Manager fails within 75 days following the end of each fiscal year of the Issuer to execute any documentation required by the Independent certified public accountants fails selected by the Issuer prior to calculate such yield to maturitythe delivery of any report contemplated by this Section 10.7, then the Trustee Issuer shall have no responsibility obligation to provide furnish any report covering such information fiscal year pursuant to the beneficial owner or Holder of a Notethis Section 10.7.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from subclause (b) above shall be delivered (or otherwise made available) by the firm of Independent certified public accountants may be requested by Trustee to any Holder directly from such accountants. Upon of Class A Notes (or its designee) upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountantstherefor.
Appears in 1 contract
Samples: Indenture (FS Investment CORP)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the Trustee nor event such firm requires the Collateral Administrator Bank in any of its capacities to agree to the procedures performed by such firm, the Issuer hereby directs the Bank to so agree, which acknowledgment or agreement may include, among other things, (i) acknowledgment of the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Bank (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants (including to the Holders). It is understood and agreed that the Bank will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and the Bank shall have any responsibility to not make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank shall not be required to make any such agreements that adversely affect the Bank in its individual capacity.
(b) On or before August 9th December 31 of each year commencing in 20202022, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Holder of the Notes upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in April and October of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.8, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a10.8(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the . The Collateral Manager. The Issuer may , on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee Trustee, each Hedge Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or . If the Collateral Manager. If , on behalf of the Issuer Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Collateral Manager, on behalf of the Issuer, shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor as provided in the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2006), the Issuer shall cause to be delivered to the Trustee, the Collateral Manager and each Rating Agency an Accountants' Report specifying the procedures applied and the associated findings with respect to the Monthly Reports, the Notes Valuation Reports and any Redemption Date Statements prepared in the year ending on such date. At least 60 days prior to the Payment Date in April 2006 (and, if at any time a successor firm of Independent certified public accountants is appointed, to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant's Report specifying in advance the procedures that such firm will apply in making the aforementioned findings throughout the term of its service as accountants to the Issuer. The Trustee shall promptly forward a statement from copy of such Accountant's Report to the Collateral Manager and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. The Issuer shall not approve the institution of such procedures if a Majority of the Aggregate Outstanding Amount of Notes of the Controlling Class, by written notice to the Issuer and the Trustee within 30 days after the date of the related notice to the Trustee, object thereto.
(c) If any Hedge Counterparty is required to post collateral pursuant to the related Hedge Agreement during any Due Period, then on or prior to the Payment Date following such Due Period and on or prior to each anniversary of such Payment Date the Issuer shall cause a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating to review and verify that the calculations within those Distribution Reports have been performed value of collateral posted is in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noterelated Hedge Agreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Arbor Realty Trust Inc)
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Services Provider on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager Services Provider on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Services Provider of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Services Provider shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent in connection with this Section 5.34(a) shall be payable by the Borrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower, or the last Business Day immediately preceding such date if such date is not a Business Day, commencing in 20202022, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since occurring in January and July of the last statement prior calendar year (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.34, the determination by such firm of Independent independent public accountants shall be conclusive. To ; provided further that, if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent independent certified public accountants, the Borrower shall promptly notify the Agents and the Lenders and describe such inconsistency in reasonable detail. Notwithstanding anything to the contrary herein, if the Custodian, Administrative Agent, the Collateral Administrator or Collateral Agent fail within 75 days following the end of each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants appointed selected by the Issuer calculate such yield Borrower prior to maturity. The Trustee the delivery of any report contemplated by this Section 5.34(b), then the Borrower shall have no responsibility obligation to calculate the yield to maturity nor to verify the accuracy of furnish any report covering such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee fiscal year pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants5.34(b).
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Refinancing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms Issuer hereby directs the Trustee and/or the Collateral Administrator to so agree, which acknowledgment or agreement may include, among other things, (i) acknowledgment of any engagement the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Trustee and/or Collateral Administrator (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable including to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processHolders), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission It is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures. The Trustee and the Collateral Administrator shall not be required to make any such agreements that adversely affect the Bank in its individual capacity.
(b) On or before August 9th December 31st of each year commencing in 20202025, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Holder of the Notes upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in April and October of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (GOLUB CAPITAL BDC, Inc.)
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the . The Collateral Manager. The Issuer may , on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee Trustee, each Hedge Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or . If the Collateral Manager. If , on behalf of the Issuer Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Collateral Manager, on behalf of the Issuer, shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor as provided in the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2006), the Issuer shall cause to be delivered to the Trustee, the Collateral Manager, each Hedge Counterparty and each Rating Agency an Accountants' Report specifying the procedures applied and the associated findings with respect to the Monthly Reports, the Notes Valuation Reports and any Redemption Date Statements prepared in the year ending on such date. At least 60 days prior to the Payment Date in April 2006 (and, if at any time a successor firm of Independent certified public accountants is appointed, to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant's Report specifying in advance the procedures that such firm will apply in making the aforementioned findings throughout the term of its service as accountants to the Issuer. The Trustee shall promptly forward a statement from copy of such Accountant's Report to the Collateral Manager and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. The Issuer shall not approve the institution of such procedures if a Majority of the Aggregate Outstanding Amount of Notes of the Controlling Class, by written notice to the Issuer and the Trustee within 30 days after the date of the related notice to the Trustee, object thereto.
(c) If any Hedge Counterparty is required to post collateral pursuant to the related Hedge Agreement during any Due Period, then on or prior to the Payment Date following such Due Period and on or prior to each anniversary of such Payment Date the Issuer shall cause a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating to review and verify that the calculations within those Distribution Reports have been performed value of collateral posted is in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noterelated Hedge Agreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Arbor Realty Trust Inc)
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Services Provider on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation reasonably acceptable to the Majority Lenders for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager Services Provider on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto reasonably acceptable to the Majority Lenders that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents, the Majority Lenders and the Services Provider of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Services Provider shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputationreputation reasonably acceptable to the Majority Lenders. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
procedures or content of such letter (b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered including without limitation with respect to the Trustee a statement from a firm sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent be required to execute any agreement in respect of Independent certified public the accountants for each Distribution Report received since that it reasonably determines adversely affects it. For the last statement (iavoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent in connection with this Section 5.34(a) indicating that shall be payable by the calculations within those Distribution Reports have been performed Borrower as Administrative Expenses in accordance with the applicable provisions Priority of Payments and the terms of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteAgreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Credit Agreement (Owl Rock Technology Finance Corp.)
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may Loan Obligation Manager, on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Loan Obligation Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee and the Rating Agency Trustee, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer Loan Obligation Manager, on behalf of the Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Loan Obligation Manager, on behalf of the Issuer, shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer as provided in the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2016), the Issuer shall cause to be delivered to the Trustee and the Loan Obligation Manager an Accountants’ Report specifying the procedures applied and the associated findings with respect to the Monthly Reports and any Redemption Date Statements prepared in the year ending on such date. If at any time a statement from a successor firm of Independent certified public accountants for each Distribution is appointed, prior to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee a draft of an (or form of) Accountant’s Report received since specifying in advance the last statement (i) indicating procedures that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm will be applying in making the aforementioned findings throughout the term of Independent certified public its service as accountants and to the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturityIssuer. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy promptly forward a copy of such Independent certified public accountants’ calculation. If the firm draft of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information an (or form of) Accountant’s Report to the beneficial owner or Holder of a NoteLoan Obligation Manager.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Arbor Realty Trust Inc)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesHolder. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Collateral Trustee, the Collateral Administrator, the Loan Agent and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Collateral Trustee and/or the Collateral Administrator to agree to the procedures performed by such firm or execute an access letter or any agreement in order to access its reports, which may contain a release of any claims, liabilities and expenses arising out of or relating to such accountant’s engagement, agreed-upon procedures or any report issued by such accountants under any such agreement, the Issuer hereby directs the Collateral Trustee or the Collateral Administrator, as the case may be, to so agree or execute any such access letter or agreement; it being understood and agreed that the Collateral Trustee and the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer and neither the Collateral Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms sufficiency, validity, or correctness of such procedures. In addition, the Bank, the Collateral Trustee, the Loan Agent and the Collateral Administrator are hereby instructed and authorized, without liability on its part, to execute and deliver any engagement acknowledgement, access letter, or other agreement with such firm of Independent accountants required for the Collateral Trustee (or Collateral Administrator, as applicable) to receive any of the certificates, reports or instructions provided for herein, which acknowledgement, access letter, or agreement may include, among other things, (i) acknowledgement that the Issuer has agreed that the procedures to be performed by the Issuer Independent accountants are sufficient for relevant purposes, (or ii) releases by the Collateral Manager Trustee (on behalf of itself and/or the IssuerHolders) or and the terms Collateral Administrator of any agreed claims, liabilities, and expenses arising out of or relating to such Independent accountant’s engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent accountants, (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders) and (iv) such other terms and conditions that the Issuer has determined are necessary or desirable. Notwithstanding the foregoing, in no event shall the Collateral Trustee or Collateral Administrator be required to execute any agreement, acknowledgement or access letter in respect of such engagement; provided, however, the Independent accountants that the Collateral Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter reasonably determines may subject it to risk of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry expenses or investigation as to, liability for which it is not adequately indemnified or shall have any obligation in respect of, the validity or correctness of such proceduresotherwise adversely affects it.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in July of each year commencing in 20202024, the Issuer shall cause to be delivered to the Trustee Collateral Trustee, the Loan Agent (for delivery to the Class A-1 Lenders), the Collateral Manager, each Holder upon written request therefor and each Rating Agency a statement from a firm of Independent certified public accountants for each Distribution Report received since prepared in April and October of the last statement prior year (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Collateral Trustee (at the request of a Holder of Subordinated Notes) or any Holder of a Subordinated Note, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in October of each year commencing in 20202021, the Issuer shall cause to be delivered to the Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (Owl Rock Capital Corp)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in April of each year commencing in 20202024, the Issuer shall cause to be delivered to the Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Trustee or any Holder holder of a Subordinated Note, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Note with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (MSD Investment Corp.)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms the firm of Independent certified public accountants Accountants to prepare and deliver the certificate or opinion required to be delivered under Section 2.12(e), and prior to the time any report or certificate pursuant to Section 8.07(b) is required to be delivered, the Issuer will appoint a firm of recognized international reputation Independent Accountants as its Independent Accountants for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSection 8.07(b). Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants Accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants Accountants which has resigned within 30 fifteen days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants fees not so paid by the Issuer (or may be paid by the Collateral Manager Trustee on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable from amounts otherwise payable to the Trustee, with such Independent certified public accountants selected by Issuer from the Issuer or Collateral Manager in which the Trustee shall agree related Collection Account pursuant to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processSection 8.02(e), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020If the Trustee shall fail to deliver to the Issuer any Payment Date Statement by the due date therefor, the Issuer shall cause to be delivered to shall, at the Trustee a statement from a firm opening of Independent certified public accountants for each Distribution Report received since business on the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between next Business Day after such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9due date, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that direct the firm of Independent certified public accountants Accountants appointed by the Issuer calculate such yield pursuant to maturity. The Trustee shall have no responsibility subsection (a) to calculate the yield prepare and deliver to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to Payment Date Statement at the beneficial owner or Holder of a Note.
(c) Upon the written request expense of the Trustee, or any Holder no later than 2:00 p.m. on the Business Day following the day on which such direction was given. Any fees of a Subordinated Note, such Independent Accountants not paid by the Issuer shall cause may be paid by the firm Trustee, on behalf of Independent certified public accountants appointed the Issuer (unless such fees are for the account of the Trustee), from amounts otherwise payable to the Issuer from the Collection Account pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof8.02(e).
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Mid State Trust Vi)
Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms Borrower has appointed a firm of Independent independent certified public accountants of recognized international reputation accountants, independent auditors or independent consultants (together with its successors, the “Independent Accountants”), in each case reasonably acceptable to the Administrative Agent and the Required Lenders, for purposes of reviewing and delivering the reports or certificates of such accountants required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent certified public accountants Accountants at any time upon notice to, but without the consent of any Holder of Notesof, the Lenders. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint appoint, by Issuer Order a certificate of a Responsible Officer of the Borrower delivered to the Trustee Administrative Agent and the Rating Agency Collateral Agent, a successor thereto that shall also be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants of recognized international reputationstanding, which may be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned Accountants within 30 thirty (30) days after such resignation, the Issuer Borrower shall promptly notify the Trustee Agents and the Collateral Manager of such failure in writing. If writing and the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee Collateral Manager shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountant of recognized international reputationstanding. The fees of such Independent certified public accountants Accountants and its any successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresBorrower.
(b) On The Borrower or before August 9th of each year commencing in 2020, the Issuer shall Collateral Manager will cause to be delivered to the Trustee a statement from a firm of Independent certified nationally recognized independent public accountants for (who may also render other services to the Collateral Manager) to furnish to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Backup Collateral Manager) once during each Distribution Report received since 365-day period ending on October 30th of each calendar year, with the last statement first such report due by no later than October 30, 2019, a report relating to such fiscal year to the effect that (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture such firm has applied certain agreed-upon procedures, and (ii) listing the Aggregate Principal Balance based on such examination, such firm is of the Assets opinion that the Monthly Reports and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Payment Date Reports for such year were prepared in compliance with this Agreement, except for such exceptions as of the immediately preceding Determination Dates; provided that it believes to be immaterial and such other exceptions as will be set forth in the event of a conflict between such firm of Independent certified public accountants and the Issuer firm’s report (including, with respect to any matter in this Section 10.9such exceptions, an explanation of how each such exception arose and reflecting the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect input/explanation of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteCollateral Manager thereto).
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in January of each year commencing in 20202021, the Issuer shall cause to be delivered to the Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Second Supplemental Indenture (Blue Owl Capital Corp)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer Borrower (or the Collateral Manager on behalf of the Borrower) shall appoint select one or more firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint by Issuer Borrower Order delivered to the Trustee and the Rating Agency Collateral Agent a successor thereto that shall also be a firm of Independent independent certified public accountants of recognized international reputation, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Collateral Agent of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee Collateral Agent shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent independent certified public accountants of recognized international reputation. The fees of such Independent independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee event such firm requires the Collateral Agent and/or the Collateral Administrator to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent and the Collateral Administrator to so agree and directs the Collateral Agent and the Collateral Administrator to execute a specified user agreement, access letter or agreement of similar import requested by such accountants; it being understood and agreed that the Collateral Agent and the Collateral Administrator will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower, and neither the Collateral Agent nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or the content of such letters.
(b) On or before August 9th May 20 of each year commencing in 20202013, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since the last statement (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.37, the determination by such firm of Independent independent public accountants shall be conclusive. To ; provided further that, if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee Borrower shall have no responsibility to provide promptly notify the Administrative Agent and the Lenders and describe such information to the beneficial owner or Holder of a Noteinconsistency in reasonable detail.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint appoint, by Issuer Order delivered to the Trustee and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (or Trustee and the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagementAdministrator to so agree; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures.
(b) On or before August 9th December 31st of each year commencing in 20202017, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Holder of the Notes upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in February and August of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Collateral Agent and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee Collateral Agent of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee Collateral Agent shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the Trustee nor event such firm requires the Collateral Administrator Bank in any of its capacities to agree to the procedures performed by such firm, the Issuer hereby directs the Bank to so agree, which acknowledgment or agreement may include, among other things, (i) acknowledgment of the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Bank (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants (including to the Holders). It is understood and agreed that the Bank will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and the Bank shall have any responsibility to not make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank shall not be required to make any such agreements that adversely affect the Bank in its individual capacity.
(b) On or before August 9th December 31 of each year commencing in 20202021, the Issuer shall cause to be delivered to the Trustee Collateral Agent, the Collateral Manager and each Holder of the Debt upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in February and August of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the TrusteeCollateral Agent, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (GOLUB CAPITAL BDC, Inc.)
Reports by Independent Accountants. (a) As of At the Closing Refinancing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms Issuer hereby directs the Trustee and/or the Collateral Administrator to so agree, which acknowledgment or agreement may include, among other things, (i) acknowledgment of any engagement the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Trustee (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable including to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processHolders), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission It is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures. The Trustee and the Collateral Administrator shall not be required to make any such agreements that adversely affect the Bank in its individual capacity.
(b) On or before August 9th June 30th of each year commencing in 20202024, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Holder of the Notes upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in April and October of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.8, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a10.8(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms Issuer hereby directs the Trustee and/or the Collateral Administrator to so agree, which acknowledgment or agreement may include, among other things, (i) acknowledgment of any engagement the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Trustee (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable including to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processHolders), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission It is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures. The Trustee and the Collateral Administrator shall not be required to make any such agreements that adversely affect the Bank in its individual capacity.
(b) On or before August 9th June 30th of each year commencing in 20202022, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Holder of the Notes upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in April and October of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.8, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a10.8(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Services Provider on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager Services Provider on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized 101101 firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Services Provider of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Services Provider shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent in connection with this Section 5.34(a) shall be payable by the Borrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower, or the last Business Day immediately preceding such date if such date is not a Business Day, commencing in 20202022, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since occurring in January and July of the last statement prior calendar year (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.34, the determination by such firm of Independent independent public accountants shall be conclusive. To ; provided further that, if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent independent certified public accountants, the Borrower shall promptly notify the Agents and the Lenders and describe such inconsistency in reasonable detail. Notwithstanding anything to the contrary herein, if the Custodian, Administrative Agent, the Collateral Administrator or Collateral Agent fail within 75 days following the end of each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants appointed selected by the Issuer calculate such yield Borrower prior to maturity. The Trustee the delivery of any report contemplated by this Section 5.34(b), then the Borrower shall have no responsibility obligation to calculate the yield to maturity nor to verify the accuracy of furnish any report covering such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee fiscal year pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants5.34(b).
Appears in 1 contract
Samples: Amendment No. 1 to Loan Documents (Blue Owl Credit Income Corp.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in November of each year commencing in 20202023, the Issuer shall cause to be delivered to the Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Owl Rock Capital Corp)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesHolder. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Collateral Trustee, the Collateral Administrator, the Loan Agent and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Collateral Trustee and/or the Collateral Administrator to agree to the procedures performed by such firm or execute an access letter or any agreement in order to access its reports, which may contain a release of any claims, liabilities and expenses arising out of or relating to such accountant's engagement, agreed-upon procedures or any report issued by such accountants under any such agreement, the Issuer hereby directs the Collateral Trustee or the Collateral Administrator, as the case may be, to so agree or execute any such access letter or agreement; it being understood and agreed that the Collateral Trustee and the Collateral ‑207‑ Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer and neither the Collateral Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms sufficiency, validity, or correctness of such procedures. In addition, the Bank, the Collateral Trustee, the Loan Agent and the Collateral Administrator are hereby instructed and authorized, without liability on its part, to execute and deliver any engagement acknowledgement, access letter, or other agreement with such firm of Independent accountants required for the Collateral Trustee (or Collateral Administrator, as applicable) to receive any of the certificates, reports or instructions provided for herein, which acknowledgement, access letter, or agreement may include, among other things, (i) acknowledgement that the Issuer has agreed that the procedures to be performed by the Issuer Independent accountants are sufficient for relevant purposes, (or ii) releases by the Collateral Manager Trustee (on behalf of itself and/or the IssuerHolders) or and the terms Collateral Administrator of any agreed claims, liabilities, and expenses arising out of or relating to such Independent accountant's engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent accountants, (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders) and (iv) such other terms and conditions that the Issuer has determined are necessary or desirable. Notwithstanding the foregoing, in no event shall the Collateral Trustee or Collateral Administrator be required to execute any agreement, acknowledgement or access letter in respect of such engagement; provided, however, the Independent accountants that the Collateral Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter reasonably determines may subject it to risk of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry expenses or investigation as to, liability for which it is not adequately indemnified or shall have any obligation in respect of, the validity or correctness of such proceduresotherwise adversely affects it.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in July of each year commencing in 20202025, the Issuer shall cause to be delivered to the Trustee Collateral Trustee, the Loan Agent (for delivery to the Class A-1 Lenders), the Collateral Manager, each Holder upon written request therefor and each Rating Agency a statement from a firm of Independent certified public accountants for each Distribution Report received since prepared in April and October of the last statement prior year (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Collateral Trustee (at the request of a Holder of Subordinated Notes) or any Holder of a Subordinated Note, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency Moody’s a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither .
(b) On or before March 31st of each year, commencing in 2015, the Issuer shall cause to be delivered to the Trustee nor a statement from a firm of Independent certified public accountants for the Distribution Report prepared in April and October of the prior year (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Administrator Obligations securing the Notes as of the relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive.
(c) Upon the written request of the Trustee, or any holder of an Interest, the Issuer will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any holder of Interests with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) The Trustee shall have any no responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, however that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process)be authorized, and without regard to any other provision upon receipt of this Indenturean Issuer Order directing the same, to execute any Holder, the Rating Agency acknowledgement or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to agreement with the contrary, Independent accountants required for the Trustee shall have no liability to receive any of the reports or responsibility instructions provided for taking any actionherein, which acknowledgement or omitting to take any actionagreement may include, if such action or omission is in accordance with this Section 10.9among other things, it being understood and (i) acknowledgement that the Issuer has agreed that the Trustee and/or procedures to be performed by the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of Independent accountants are sufficient for the Issuer’s purposes, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing releases by the Aggregate Principal Balance Trustee (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Assets Independent accountants, and (iii) restrictions or prohibitions on the Aggregate Principal Balance disclosure of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; information or documents provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination it by such firm of Independent public accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield required to maturity execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereofIndependent accountants that the Trustee reasonably determines adversely affects it. In addition, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield not be required to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information forward or otherwise disclose to the beneficial owner Holders any report or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of statement received by Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from 10.9. In the firm of Independent certified public accountants may be requested by event a Holder wishes to request any Holder such report or statement, it must do so directly from such accountants. Upon written request from a Holder to the Trusteerequest, the Trustee shall provide to such the requesting Holder the contact information for such accountants. The Trustee shall not have any liability to any Holder relating to such accountant’s report or statement or the unavailability thereof.
Appears in 1 contract
Samples: Indenture (NewStar Financial, Inc.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesHolder. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, the Collateral Agent, the Loan Agent and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee Collateral Agent of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee Collateral Agent shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the Trustee nor event such firm requires the Collateral Agent and/or the Collateral Administrator shall have to agree to the procedures performed by such firm or execute an access letter or any responsibility agreement in order to make access its reports, which may contain a release of any inquiry claims, liabilities and expenses arising out of or investigation as torelating to such accountant’s engagement, and shall have no obligation in respect ofagreed-upon procedures or any report issued by such accountants under any such agreement, the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (Collateral Agent or the Collateral Manager on behalf of Administrator, as the Issuer) case may be, to so agree or the terms of execute any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letterletter or agreement; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or Collateral Agent and the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, Issuer and neither the Trustee Collateral Agent nor the Collateral Administrator shall make any no inquiry or investigation as to, or and shall have any no obligation in respect of, the validity sufficiency, validity, or correctness of such procedures. In addition, the Bank, the Trustee, the Collateral Agent, the Loan Agent and the Collateral Administrator shall be authorized, without liability on its part, to execute and deliver any acknowledgement, access letter, or other agreement with such firm of Independent accountants required for the Collateral Agent (or Collateral Administrator, as applicable) to receive any of the certificates, reports or instructions provided for herein, which acknowledgement, access letter, or agreement may include, among other things, (i) acknowledgement that the Issuer has agreed that the procedures to be performed by the Independent accountants are sufficient for relevant purposes, (ii) releases by the Collateral Agent (on behalf of itself and/or the Holders) and the Collateral Administrator of any claims, liabilities, and expenses arising out of or relating to such Independent accountant’s engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent accountants, and (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Collateral Agent or Collateral Administrator be required to execute any agreement, acknowledgement or access letter in respect of the Independent accountants that the Collateral Agent or the Collateral Administrator, as the case may be, reasonably determines may subject it to risk of expenses or liability for which it is not adequately indemnified or otherwise adversely affects it.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in October of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Agent, the Loan Agent (for delivery to the Class A-1 Lenders), the Collateral Manager, each Holder upon written request therefor and each Rating Agency a statement from a firm of Independent certified public accountants for each Distribution Report received since prepared in April and October of the last statement prior year (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Collateral Agent (at the request of a Holder of Preferred Shares) or any Holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor to agree to the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofprocedures performed by such firm, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that hereby directs the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letterso agree; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any no inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures.
(b) On or before August 9th November 20th of each year commencing in 20202011, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager, each Holder of the Notes upon written request therefor and each Rating Agency a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.8, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to 10.8(a)to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Garrison Capital LLC)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms the firm of Independent certified public accountants Accountants to prepare and deliver the certificate or opinion required to be delivered under Section 2.12(f), and prior to the time any report or certificate pursuant to Section 8.06(b) is required to be delivered, the Issuer will appoint a firm of recognized international reputation Independent Accountants as its Independent Accountants for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSection 8.06(b). Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants Accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants Accountants which has resigned within 30 fifteen days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants fees not so paid by the Issuer (or may be paid by the Collateral Manager Trustee on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable from amounts otherwise payable to the Trustee, with such Independent certified public accountants selected by Issuer from the Issuer or Collateral Manager in which the Trustee shall agree related Collection Account pursuant to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processSection 8.02(d), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020If the Trustee shall fail to deliver to the Issuer any Payment Date Statement by the due date therefor, the Issuer shall cause to be delivered to shall, at the Trustee a statement from a firm opening of Independent certified public accountants for each Distribution Report received since business on the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between next Business Day after such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9due date, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that direct the firm of Independent certified public accountants Accountants appointed by the Issuer calculate such yield pursuant to maturity. The Trustee shall have no responsibility subsection (a) to calculate the yield prepare and deliver to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to Payment Date Statement at the beneficial owner or Holder of a Note.
(c) Upon the written request expense of the Trustee, or any Holder no later than 2:00 p.m. on the Business Day following the day on which such direction was given. Any fees of a Subordinated Note, such Independent Accountants not paid by the Issuer shall cause may be paid by the firm Trustee, on behalf of Independent certified public accountants appointed the Issuer (unless such fees are for the account of the Trustee), from amounts otherwise payable to the Issuer from the Collection Account pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof8.02(d).
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Mid-State Homes Inc)
Reports by Independent Accountants. (a) As of Within 60 days following the Closing Date, the Issuer Borrower (or the Collateral Manager on behalf of the Borrower) shall appoint select one or more firms of Independent independent certified public accountants of recognized international national reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this Indentureclause (b) below, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower or the Collateral Manager may remove any such firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower or the Collateral Manager, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint by Issuer Borrower Order delivered to the Trustee and the Rating Agency Collateral Agent a successor thereto that shall also be a firm of Independent independent certified public accountants of recognized international national reputation, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Collateral Agent of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 days thereafterten Business Days after the Collateral Agent’s receipt of such notice, the Trustee Collateral Agent shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent independent certified public accountants of recognized international national reputation. The fees fees, expenses and indemnity of such Independent any independent certified public accountants accountants, and its successor any successor, shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event any such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such firm; it being understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower, and the Collateral Agent shall have any responsibility to not make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or the content of such letters.
(b) On or before August 9th December 31 of each year commencing in 20202021, or such later date as may be agreed to by the Administrative Agent in its sole discretion, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent and the Administrative Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since the last statement (i) indicating that the calculations within in those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination DatesAgreement; provided that (x) in the event of a conflict between the determination by such firm of Independent independent certified public accountants and the Issuer determination by the Borrower with respect to any matter in this Section 10.96.22, the determination by such firm of Independent independent public accountants shall be conclusive. To prevail absent manifest error; and (y) if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee Borrower shall have no responsibility to provide promptly notify the Administrative Agent and the Collateral Agent and describe such information to the beneficial owner or Holder of a Noteinconsistency in reasonable detail.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms the firm of Independent certified public accountants Accountants to prepare and deliver the certificate or opinion required to be delivered under Section 2.12(e), and prior to the time any report or certificate pursuant to Section 8.06(b) is required to be delivered, the Issuer will appoint a firm of recognized international reputation Independent Accountants as its Independent Accountants for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSection 8.06(b). Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants Accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants Accountants which has resigned within 30 fifteen days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants fees not so paid by the Issuer (or may be paid by the Collateral Manager Trustee on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable from amounts otherwise payable to the Trustee, with such Independent certified public accountants selected by Issuer from the Issuer or Collateral Manager in which the Trustee shall agree related Collection Account pursuant to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processSection 8.02(d), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020If the Trustee shall fail to deliver to the Issuer any Payment Date Statement by the due date therefor, the Issuer shall cause to be delivered to shall, at the Trustee a statement from a firm opening of Independent certified public accountants for each Distribution Report received since business on the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between next Business Day after such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9due date, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that direct the firm of Independent certified public accountants Accountants appointed by the Issuer calculate such yield pursuant to maturity. The Trustee shall have no responsibility subsection (a) to calculate the yield prepare and deliver to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to Payment Date Statement at the beneficial owner or Holder of a Note.
(c) Upon the written request expense of the Trustee, or any Holder no later than 2:00 p.m. on the Business Day following the day on which such direction was given. Any fees of a Subordinated Note, such Independent Accountants not paid by the Issuer shall cause may be paid by the firm Trustee, on behalf of Independent certified public accountants appointed the Issuer (unless such fees are for the account of the Trustee), from amounts otherwise payable to the Issuer from the Collection Account pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof8.02(d).
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Mid State Trust Vi)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, the Hedge Counterparty and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation provided in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures11.1.
(b) On or before August 9th December 31 of each year (commencing in 2020with December 31, 2006), the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Rating Agency an Accountants’ Report specifying the procedures applied and their associated findings with respect to the Monthly Reports prepared in the month in which a statement from Distribution Date occurs, the Ramp-Up Completion Date Report, the Note Valuation Reports and any Redemption Date Statements prepared in the preceding year. At least 90 days prior to the Distribution Date in November, 2006 (and, if at any time a successor firm of Independent certified public accountants for each is appointed, to the Distribution Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountants’ Report received since specifying in advance the last statement (i) indicating procedures that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm will apply in making the aforementioned findings throughout the term of Independent certified public its service as accountants and to the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturityIssuer. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy promptly forward a copy of such Independent certified public accountantsAccountants’ calculationReport to the Hedge Counterparty and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. If The Issuer shall not approve the firm institution of Independent certified public accountants fails such procedures if a Majority of the Controlling Class, by notice to calculate such yield to maturity, the Issuer and the Trustee shall have no responsibility to provide such information within 30 days after the date of the related notice to the beneficial owner or Holder of a NoteTrustee, object thereto.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from clause (b) above shall be delivered by the firm of Independent certified public accountants may be requested by Trustee to any Holder directly from such accountants. Upon of a Note shown on the Note Register or the Hedge Counterparty upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountantstherefor.
Appears in 1 contract
Reports by Independent Accountants. (a) As of The Issuer shall, prior to the Closing first Payment Date, the Issuer shall appoint one or more firms a nationally recognized firm of Independent certified public accountants of recognized international reputation for purposes of reviewing to prepare and delivering deliver the reports or certificates of such accountants required by this Indenture, which may be Indenture (the firm of “Independent certified public accountants that performs accounting services for the Issuer or the Collateral ManagerAccountants”). The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by If such firm shall cease to serve (whether by reason of resignation, termination or removal of such firm by the Issuerotherwise), the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for national reputation in the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writingUnited States. If the Issuer shall not have appointed a successor within 10 30 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputationnational reputation in the United States. The fees of such firm of Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants fees not so paid by the Issuer (or shall be paid by the Collateral Manager Trustee on behalf of the Issuer) or , if and to the extent of Available Funds therefor in the Collection Account pursuant to and subject to the terms of any agreed upon procedures in respect of such engagement; provided, however, that Section 11.01. Nothing herein shall be construed to obligate the Trustee is hereby directed to execute an access letter, in form and substance acceptable advance its own funds to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party pay any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture accountant’s fees, provided that, should it elect to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9do so, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresbe entitled to reimbursement therefor pursuant to Section 6.07.
(b) On or before August 9th of prior to December 15 in each year calendar year, commencing in 20202006, the Issuer shall cause to be delivered to the Trustee Trustee, each Rating Agency and the Collateral Manager a statement from a the firm of Independent certified public accountants for appointed by the Issuer indicating (i) that such firm has reviewed each Distribution Note Valuation Report received since the last statement review (ior since the Closing Date, in the case of the first such review), (ii) indicating that the calculations within those Distribution Reports each such Note Valuation Report have been performed in accordance with the applicable provisions of this Indenture and (iiiii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance Amount of the Collateral Debt Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in Calculation Date. In the event of a conflict between such firm requires the Trustee to agree to the procedures performed by such firm, the Issuer shall direct the Trustee in writing to so agree; it being understood and agreed that the Trustee will deliver such letter of Independent certified public accountants agreement in conclusive reliance upon the direction of the Issuer, and the Issuer with respect to any matter in this Section 10.9Trustee makes no independent inquiry or investigation as to, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee and shall have no responsibility to calculate obligation or liability in respect of, the yield to maturity nor to verify the accuracy sufficiency, validity or correctness of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noteprocedures.
(c) Upon the written request of the Trustee, or any Holder The activities of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to this Section 10.9(a) 10.06 shall be conducted pursuant to provide any Holder of Subordinated Notes with all of the information required to be provided by an engagement letter between the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereofand an officer of such firm.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (MCG Capital Corp)
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Services Provider on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager Services Provider on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Services Provider of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Services Provider shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
procedures or content of such letter (b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer including without limitation with respect to the sufficiency thereof for any matter in this Section 10.9purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the determination by such firm of Independent public accountants shall Collateral Agent be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield required to maturity execute any agreement in respect of the relevant Note in order to determine accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any “original issue discount” in respect thereofcosts, the Trustee shall request that the firm of Independent certified public accountants appointed fees or expenses incurred by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes Collateral Agent in connection with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.726098183 67 730008998.8 17559657 67
Appears in 1 contract
Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesObligations. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th January 24 of each year commencing in 20202024, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note an Obligation requests the yield to maturity in respect of the relevant Note Obligation in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Notean Obligation.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither .
(b) On or before March 31st of each year, commencing in 2014, the Issuer shall cause to be delivered to the Trustee nor a statement from a firm of Independent certified public accountants for the Distribution Report prepared in April and October of the prior year (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Administrator Obligations securing the Notes as of the relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive.
(c) Upon the written request of the Trustee, or any holder of an Interest, the Issuer will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any holder of Interests with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) The Trustee shall have any no responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, however that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process)be authorized, and without regard to any other provision upon receipt of this Indenturean Issuer Order directing the same, to execute any Holder, the Rating Agency acknowledgement or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to agreement with the contrary, Independent accountants required for the Trustee shall have no liability to receive any of the reports or responsibility instructions provided for taking any actionherein, which acknowledgement or omitting to take any actionagreement may include, if such action or omission is in accordance with this Section 10.9among other things, it being understood and (i) acknowledgement that the Issuer has agreed that the Trustee and/or procedures to be performed by the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of Independent accountants are sufficient for the Issuer’s purposes, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing releases by the Aggregate Principal Balance Trustee (on behalf of itself and the Holders) of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Assets Independent accountants, and (iii) restrictions or prohibitions on the Aggregate Principal Balance disclosure of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; information or documents provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination it by such firm of Independent public accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield required to maturity execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereofIndependent accountants that the Trustee reasonably determines adversely affects it. In addition, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield not be required to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information forward or otherwise disclose to the beneficial owner Holders any report or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of statement received by Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from 10.9. In the firm of Independent certified public accountants may be requested by event a Holder wishes to request any Holder such report or statement, it must do so directly from such accountants. Upon written request from a Holder to the Trusteerequest, the Trustee shall provide to such the requesting Holder the contact information for such accountants. The Trustee shall not have any liability to any Holder relating to such accountant’s report or statement or the unavailability thereof.
Appears in 1 contract
Samples: Indenture (NewStar Financial, Inc.)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms the firm of Independent certified public accountants Accountants to prepare and deliver the certificate or opinion required to be delivered under Section 2.12(f), and prior to the time any report or certificate pursuant to Section 8.07(b) is required to be delivered, the Issuer will appoint a firm of recognized international reputation Independent Accountants as its Independent Accountants for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSection 8.07(b). Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants Accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants Accountants which has resigned within 30 fifteen days after such resignation, the Issuer shall promptly notify the Indenture Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Indenture Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants fees not so paid by the Issuer (or may be paid by the Collateral Manager Indenture Trustee on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable from amounts otherwise payable to the Trustee, with such Independent certified public accountants selected by Issuer from the Issuer or Collateral Manager in which the Trustee shall agree related Collection Account pursuant to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processSection 8.02(d), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020If the Indenture Trustee shall fail to deliver to the Issuer any Payment Date Statement by the due date therefor, the Issuer shall cause to be delivered to shall, at the Trustee a statement from a firm opening of Independent certified public accountants for each Distribution Report received since business on the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between next Business Day after such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9due date, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that direct the firm of Independent certified public accountants Accountants appointed pursuant to subsection (a) to prepare and deliver to the Indenture Trustee such Payment Date Statement at the expense of the Indenture Trustee, no later than 2:00 p.m. on the Business Day following the day on which such direction was given. Any fees of such Independent Accountants not paid by the Issuer calculate may be paid by the Indenture Trustee, on behalf of the Issuer (unless such yield to maturity. The Trustee shall have no responsibility to calculate fees are for the yield to maturity nor to verify account of the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturityIndenture Trustee), the Trustee shall have no responsibility to provide such information from amounts otherwise payable to the beneficial owner or Holder of a Note.
(c) Upon Issuer from the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed Collection Account pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof8.02(d).
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Mid State Homes Trust Xi)
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the . The Collateral Manager. The Issuer may , on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee Trustee, each Hedge Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be national reputation and shall provide notice to a firm designated representative of Independent certified public accountants that performs accounting services for the Issuer or Controlling Class. If the Collateral Manager. If , on behalf of the Issuer Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Collateral Manager, on behalf of the Issuer, shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor as provided in the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2006), the Issuer shall cause to be delivered to the Trustee, the Collateral Manager and each Rating Agency an Accountants’ Report specifying the procedures applied and the associated findings with respect to the Monthly Reports, the Notes Valuation Reports and any Redemption Date Statements prepared in the year ending on such date. At least 60 days prior to the Payment Date in April 2006 (and, if at any time a successor firm of Independent certified public accountants is appointed, to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant’s Report specifying in advance the procedures that such firm will apply in making the aforementioned findings throughout the term of its service as accountants to the Issuer. The Trustee shall promptly forward a statement from copy of such Accountant’s Report to the Collateral Manager and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. The Issuer shall not approve the institution of such procedures if a Majority of the Aggregate Outstanding Amount of Notes of the Controlling Class, by written notice to the Issuer and the Trustee within 30 days after the date of the related notice to the Trustee, object thereto.
(c) If any Hedge Counterparty is required to post collateral pursuant to the related Hedge Agreement during any Due Period, then on or prior to the Payment Date following such Due Period and on or prior to each anniversary of such Payment Date the Issuer shall cause a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating to review and verify that the calculations within those Distribution Reports have been performed value of collateral posted is in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noterelated Hedge Agreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Gramercy Capital Corp)
Reports by Independent Accountants. (a) As of Within 60 days following the Closing Date, the Issuer Borrower (or the Collateral Manager on behalf of the Borrower) shall appoint select one or more firms of Independent independent certified public accountants of recognized international national reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this Indentureclause (b) below, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower or the Collateral Manager may remove any such firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower or the Collateral Manager, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint by Issuer Borrower Order delivered to the Trustee and the Rating Agency U.S. Collateral Agent a successor thereto that shall also be a firm of Independent independent certified public accountants of recognized international national reputation, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Blackstone Asset Based Finance Representative of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 days thereafterten Business Days after the Blackstone Asset Based Finance Representative’s receipt of such notice, the Trustee Blackstone Asset Based Finance Representative shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent independent certified public accountants of recognized international national reputation. The fees fees, expenses and indemnity of such Independent any independent certified public accountants accountants, and its successor any successor, shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee event any such firm requires the U.S. Collateral Agent and/or the Collateral Administrator to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the U.S. Collateral Agent and the Collateral Administrator to so agree and directs the U.S. Collateral Agent and the Collateral Administrator to execute a specified user agreement, access letter or agreement of similar import requested by such firm, which may contain, among other things, (1) acknowledgements of the sufficiency of the agreed upon procedures agreed to in connection with the engagement of the independent certified public accountants by the Borrower, (2) releases of claims and other limitations of liability in favor of the certified public accountants, or (3) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of independent accountants (including to the Lenders); it being understood and agreed that the U.S. Collateral Agent and the Collateral Administrator will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower, and neither the U.S. Collateral Agent nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or the content of such letters. Notwithstanding the foregoing, in no event shall the U.S. Collateral Agent or the Collateral Administrator be required to execute any agreement in respect of the independent certified public accountants that such party determines adversely affects it in its individual capacity; provided that, for the avoidance of doubt, no breach, default or Event of Default shall result solely from the failure of any report or notice required to be delivered under this paragraph if such failure is solely due to the refusal by the U.S. Collateral Agent or the Collateral Administrator to execute any agreement it is directed to execute by the Borrower in accordance with this paragraph.
(b) On or before August 9th December 30 of each year commencing in 20202023, the Issuer Borrower shall cause to be delivered to the Trustee a statement U.S. Collateral Agent, the Collateral Administrator and the Blackstone Asset Based Finance Representative an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report (and each Collateral Report delivered during a month in which a Quarterly Payment Date occurred) received since the last statement (i1) indicating that the calculations within in those Distribution Payment Date Reports and Collateral Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii2) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination DatesMeasurement Date; provided that (x) in the event of a conflict between the determination by such firm of Independent independent certified public accountants and the Issuer determination by the Borrower with respect to any matter in this Section 10.95.35, the determination by such firm of Independent independent public accountants shall be conclusive. To prevail absent manifest error; and (y) if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee Borrower shall have no responsibility to provide such information to promptly notify the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteBlackstone Asset Based Finance Representative, the Issuer shall cause Administrative Agent and the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer U.S. Collateral Agent and describe such inconsistency in the preparation thereofreasonable detail.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 thirty (30) days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Collateral Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is thirty (30) days after the Payment Date occurring in JulyFebruary of each year commencing in 202020232026 , the Issuer shall cause to be delivered to the Collateral Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Collateral Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: First Supplemental Indenture (Blue Owl Capital Corp)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the Trustee nor event such firm requires the Bank in any of its capacities or the Collateral Administrator shall have any responsibility Administrator, as applicable, to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms Issuer hereby directs the Bank or the Collateral Administrator, as applicable, to so agree, which acknowledgment or agreement may include, among other things, (i) acknowledgment of any engagement the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Bank (on behalf of itself and the Holders) or the Collateral Administrator, as applicable, of claims against the Independent accountants and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable including to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processHolders), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission It is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or Bank or the Collateral Administrator, as the case may beapplicable, shall will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee Bank nor the Collateral Administrator Administrator, as applicable, shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures. Neither the Bank nor the Collateral Administrator, as applicable, shall be required to make any such agreements that adversely affect it in its individual capacity.
(b) On or before August 9th December 31st of each year commencing in 20202023, the Issuer shall cause to be delivered to the Trustee Collateral Trustee, the Collateral Manager and each Holder of the Debt upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in April and October of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Collateral Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Collateral Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in July of each year commencing in 20202023, the Issuer shall cause to be delivered to the Collateral Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Collateral Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (Owl Rock Capital Corp)
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Servicer on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServicer. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager Servicer on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServicer. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Servicer of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Servicer shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. In the event such firm requires the Collateral Agent and/or the Collateral Administrator to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent and/or the Collateral Administrator, as applicable, to so agree and directs the Collateral Agent and/or the Collateral Administrator to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower's purposes, (ii) releases by the Collateral Agent or the Collateral Administrator, as applicable (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent or the Collateral Administrator will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. Neither the Trustee Collateral Agent nor the Collateral Administrator shall have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent or the Collateral Administrator be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent or the Collateral Administrator in connection with this Section 5.36(a) shall be payable by the Borrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower, or the last Business Day immediately preceding such date if such date is not a Business Day, commencing in 20202024, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent and the Collateral Administrator an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Collateral Report received since occurring in May and November of the last statement prior calendar year (i) indicating that the calculations within those Distribution Collateral Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.36, the determination by such firm of Independent independent public accountants shall be conclusive. To ; provided further that, if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent independent certified public accountants, the Borrower shall promptly notify the Agents and the Lenders and describe such inconsistency in reasonable detail. Notwithstanding anything to the contrary herein, if the Custodian, Administrative Agent, the Collateral Administrator or Collateral Agent fail within 75 days following the end of each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants appointed selected by the Issuer calculate such yield Borrower prior to maturity. The Trustee the delivery of any report contemplated by this Section 5.36(b), then the Borrower shall have no responsibility obligation to calculate the yield to maturity nor to verify the accuracy of furnish any report covering such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee fiscal year pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants5.36(b).
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and (with copies to the Rating Agency Asset Manager) a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint such a successor to a firm of Independent certified public accountants which has resigned and provide such Issuer Order within 30 days after such resignation, the Issuer Asset Manager shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On For so long as any Rated Notes are Outstanding, on or before August 9th November 14 of each year year, commencing in 20202025, the Issuer shall cause to be delivered to the Trustee a statement report (an “Accountants’ Payment Date Report”) from a firm of Independent certified public accountants for each Distribution Report received since the last statement indicating (i) indicating that such firm has recalculated certain information in the preceding quarter’s Payment Date Report and applicable information from the Trustee and (ii) that the calculations within those Distribution Reports have such Payment Date Report has been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in Indenture. In the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.7, the determination by such firm of Independent certified public accountants shall be conclusive. To .
(c) In the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the event such firm of Independent certified public accountants appointed by the Issuer calculate requires the Trustee (or Collateral Administrator, as applicable) to agree to the procedures performed by such yield firm (with respect to maturity. The any of the reports or certificates of such firm), or sign any other agreement in connection therewith, the Trustee and/or Collateral Administrator shall, the Issuer hereby directs the Trustee and the Collateral Administrator, as applicable, to so agree to the terms and conditions requested by such firm of Independent accountants as a condition to receiving documentation required by this Indenture; it being understood and agreed that the Trustee and/or Collateral Administrator (as applicable) shall deliver such letter of agreement or other agreement in conclusive reliance on such direction and shall make no inquiry or investigation as to, and shall have no obligation or responsibility to calculate in respect of, the yield to maturity nor to verify terms of the accuracy engagement of such Independent certified public accountants’ calculationaccountants by the Issuer (or the Asset Manager on its behalf) or the sufficiency, validity or correctness of the agreed upon procedures in respect of such engagement. If In reliance upon such direction by the Issuer, the Trustee or Collateral Administrator is hereby authorized, without liability on its part, to execute and deliver any acknowledgement or other agreement with such firm of Independent accountants required for the Trustee (or Collateral Administrator, as applicable) to receive any of the certificates, reports or instructions provided for herein, which acknowledgement or agreement, to the extent so directed by the Issuer (or the Asset Manager on its behalf), may include, amongst other things, (i) acknowledgement that the Issuer has agreed that the procedures by the Independent accountants are sufficient for relevant purposes, (ii) releases by the Trustee (on behalf of itself and/or the Holders) or the Collateral Administrator of any claims, liabilities and expenses arising out of or relating to such Independent accountant’s engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent accountants and (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee or the Collateral Administrator be required to execute any agreement in respect of the Independent certified public accountants fails to calculate such yield to maturity, that the Trustee shall have no responsibility to provide such information to or the beneficial owner or Holder of a NoteCollateral Administrator, as applicable, determines in its sole discretion adversely affects it.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency Agencies a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 thirty (30) days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is thirty (30) days after the Payment Date occurring in July of each year commencing in 20202025, the Issuer shall cause to be delivered to the Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. On or after the Closing Date (a) As or, with respect to an Additional Borrower, the applicable Joinder Effective Date), the Borrower (or the Servicer on behalf of the Closing Date, the Issuer Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServicer. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager Servicer on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServicer. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Servicer of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Servicer shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. In the event such firm requires the Collateral Agent and/or the Collateral Administrator to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent and/or the Collateral Administrator, as applicable, to so agree and directs the Collateral Agent and/or the Collateral Administrator to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower's purposes, (ii) releases by the Collateral Agent or the Collateral Administrator, as applicable (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent or the Collateral Administrator will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. Neither the Trustee Collateral Agent nor the Collateral Administrator shall have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
procedures or content of such letter (b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered including without limitation with respect to the Trustee a statement from a firm sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent or the Collateral Administrator be required to execute any agreement in respect of Independent certified public the accountants for each Distribution Report received since that it reasonably determines adversely affects it. For the last statement (iavoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent or the Collateral Administrator in connection with this Section 5.34(a) indicating that shall be payable by the calculations within those Distribution Reports have been performed Borrower as Administrative Expenses in accordance with the applicable provisions Priority of Payments and the terms of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteAgreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the . The Collateral Manager. The Issuer may , on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee Trustee, each Hedge Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be national reputation and shall provide notice to a firm designated representative of Independent certified public accountants that performs accounting services for the Issuer or Controlling Class. If the Collateral Manager. If , on behalf of the Issuer Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Collateral Manager, on behalf of the Issuer, shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or Issuer as provided in the terms Priority of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2006), the Issuer shall cause to be delivered to the Trustee, the Collateral Manager and each Rating Agency an Accountants’ Report specifying the procedures applied and the associated findings with respect to the Monthly Reports, the Notes Valuation Reports and any Redemption Date Statements prepared in the year ending on such date. At least 60 days prior to the Payment Date in April 2007 (and, if at any time a successor firm of Independent certified public accountants is appointed, to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant’s Report specifying in advance the procedures that such firm will apply in making the aforementioned findings throughout the term of its service as accountants to the Issuer. The Trustee shall promptly forward a statement from copy of such Accountant’s Report to the Collateral Manager and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. The Issuer shall not approve the institution of such procedures if a Majority of the Aggregate Outstanding Amount of Notes of the Controlling Class, by written notice to the Issuer and the Trustee within 30 days after the date of the related notice to the Trustee, object thereto.
(c) If any Hedge Counterparty is required to post collateral pursuant to the related Hedge Agreement during any Due Period, then on or prior to the Payment Date following such Due Period and on or prior to each anniversary of such Payment Date the Issuer shall cause a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating to review and verify that the calculations within those Distribution Reports have been performed value of collateral posted is in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noterelated Hedge Agreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Capitalsource Inc)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSecurities. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer as Administrative Expenses. Neither In the event such firm requires the Bank, in any of its capacities including but not limited to Collateral Trustee nor or Collateral Administrator, to agree to the Collateral Administrator procedures performed by such firm, which acknowledgment or agreement may include confidentiality provisions and/or releases of claims or other liabilities by the Bank, the Issuer hereby directs the Bank to so agree; it being understood that the Bank shall have any responsibility to deliver such letter of agreement in conclusive reliance on the foregoing direction and the Bank shall make any no inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; providedsufficiency, howevervalidity, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures. The Bank, in each of its capacities, shall not disclose any information or documents provided to it by such firm of Independent accountants.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in November of each year commencing in 20202023, the Issuer shall cause to be delivered to the Collateral Trustee and the Collateral Manager a statement from a firm of Independent certified public accountants for each Distribution Report received since delivered in the last statement previous year (i) indicating that the such firm has performed agreed upon procedures to recalculate certain calculations within those such Distribution Reports have been performed in accordance with Report (excluding the applicable provisions of this Indenture S&P CDO Monitor Test) and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, Collateral Trustee or any Holder holder of a Subordinated NotePreferred Share, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes the Preferred Shares with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (Owl Rock Core Income Corp.)
Reports by Independent Accountants. (a) As of On or before the date which is 30 days after the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, the Collateral Agent, the Loan Agent and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee Collateral Agent of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee Collateral Agent shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the Trustee nor event such firm requires the Collateral Agent and/or the Collateral Administrator shall have to agree to the procedures performed by such firm or execute an access letter or any responsibility agreement in order to make access its reports, which may contain a release of any inquiry claims, liabilities and expenses arising out of or investigation as torelating to such accountant’s engagement, and shall have no obligation in respect ofagreed-upon procedures or any report issued by such accountants under any such agreement, the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (Collateral Agent or the Collateral Manager on behalf of Administrator, as the Issuer) case may be, to so agree or the terms of execute any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letterletter or agreement; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or Collateral Agent and the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, Issuer and neither the Trustee Collateral Agent nor the Collateral Administrator shall make any no inquiry or investigation as to, or and shall have any no obligation in respect of, the validity sufficiency, validity, or correctness of such procedures. In addition, the Bank, the Trustee, the Collateral Agent, the Loan Agent and the Collateral Administrator shall be authorized, without liability on its part, to execute and deliver any acknowledgement, access letter, or other agreement with such firm of Independent accountants required for the Collateral Agent (or Collateral Administrator, as applicable) to receive any of the certificates, reports or instructions provided for herein, which acknowledgement, access letter, or agreement may include, among other things, (i) acknowledgement that the Issuer has agreed that the procedures to be performed by the Independent accountants are sufficient for relevant purposes, (ii) releases by the Collateral Agent (on behalf of itself and/or the Holders) and the Collateral Administrator of any claims, liabilities, and expenses arising out of or relating to such Independent accountant’s engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent accountants, and (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Collateral Agent or Collateral Administrator be required to execute any agreement, acknowledgement or access letter in respect of the Independent accountants that the Collateral Agent or the Collateral Administrator, as the case may be, reasonably determines may subject it to risk of expenses or liability for which it is not adequately indemnified or otherwise adversely affects it.
(b) On or before August 9th the date which is 30 days after the Payment Date occurring in January of each year commencing in 20202022, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Agent, the Loan Agent (for delivery to the Class A-1 Lenders) the Collateral Manager, each Holder of the Notes upon written request therefor and the Rating Agency a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Collateral Agent (at the request of a Holder of a Subordinated NoteNotes), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture and Security Agreement (Silver Point Specialty Lending Fund)
Reports by Independent Accountants. (a) As of At the Closing Date, Date the Issuer (or the Collateral Manager on its behalf) shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer shall (or after consultation with the Collateral Manager on behalf Manager) propose a replacement firm meeting the criteria set forth in the preceding sentence for approval by a Majority of the Issuer) Controlling Class. Upon approval by a Majority of the Controlling Class, the Issuer shall promptly appoint such firm by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputationTrustee, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or each Hedge Counterparty, the Collateral ManagerManager and each Rating Agency. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation Issuer as to, and shall have no obligation provided in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures11.1.
(b) On or before August 9th May 31 of each year (commencing in 2020with May 31, 2008), the Issuer shall cause to be delivered to the Trustee Trustee, the PAA Issued Note Paying Agent and each Rating Agency an Accountant’s Report specifying the procedures applied and their associated findings with respect to the Note Valuation Reports and any Redemption Date Statements prepared in the preceding year. At least 60 days prior to the Payment Date in May 2008 (and, if at any time a statement from a successor firm of Independent certified public accountants for each Distribution is appointed, prior to the Payment Date in August following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant’s Report received since specifying in advance the last statement (i) indicating procedures that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm will apply in making the aforementioned findings throughout the term of Independent certified public its service as accountants and to the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturityIssuer. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy promptly forward a copy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails Accountant’s Report to calculate such yield to maturityeach Hedge Counterparty, the Trustee Rating Agencies, the PAA Issued Note Paying Agent and each Holder of Class A Senior Notes (or, if no Class A Senior Notes are Outstanding, each Holder of Class A-2 Notes or, if no Class A Notes are Outstanding, each Holder of Class B Notes or, if no Class B Notes are Outstanding, each Holder of Class C Notes or, if no Class C Notes are Outstanding, each Holder of Class D Notes or, if no Class D Notes are Outstanding, each Holder of Class E Notes or, if no Class E Notes are Outstanding, each Holder of Class F Notes or, if no Class F Notes are Outstanding, each Holder of Class G Notes or, if no Class G Notes are Outstanding, each Holder of Class H Notes or, if no Class H Notes are Outstanding, each Holder of Class J Notes or, if no Class J Notes are Outstanding, each Holder of Class K Notes, or, if no Class K Notes are Outstanding, each Holder of Class L Notes or, if no Class L Notes are Outstanding, each Holder of Class M Notes or, if no Class M Notes are Outstanding, each Holder of Class N Notes), at the address shown on the Note Register. The Issuer shall have no responsibility to provide not approve the institution of such information procedures if a Majority of the Controlling Class or the Collateral Manager, by notice to the beneficial owner or Holder Issuer and the Trustee within 30 days after the date of a Notethe related notice to the Trustee, object thereto.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from 10.13(b) above shall be made available by the firm of Independent certified public accountants may be requested by Trustee to any Holder directly from such accountants. Upon of a Rated Note shown on the Note Register upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountantstherefor.
Appears in 1 contract
Samples: Indenture (Northstar Realty)
Reports by Independent Accountants. (a) As of On or prior to the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing recalculation and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Collateral Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Collateral Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Collateral Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th December 31st of each year commencing in 20202025, the Collateral Manager on behalf of the Issuer shall cause to be delivered to the Collateral Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed recalculated and confirmed to the information provided by the Issuer in accordance with the applicable provisions of this Indenture and (ii) listing recalculating the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer or Collateral Manager with respect to any matter in this Section 10.910.9 (Reports by Independent Accountants), the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note Debt requests the yield to maturity in respect of the relevant Note Debt in order to determine any “original issue discount” in respect thereof, the Collateral Trustee shall may request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Collateral Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Collateral Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteDebt.
(c) Upon the written request of the Collateral Trustee, or any Holder or beneficial owner of a Subordinated Note, the Collateral Manager on behalf of the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) (Reports by Independent Accountants) to provide any Holder or beneficial owner of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 7.17(Certain Tax Matters) or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered Neither the Collateral Trustee nor the Collateral Administrator shall have any responsibility to the Issuer or the Secured Parties hereunder to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer); provided, however, that the Collateral Trustee pursuant is hereby directed by the Issuer to this Section 10.9 from execute any acknowledgment or other agreement with the Independent accountants required for the Collateral Trustee to receive any of the reports or instructions provided for herein, which acknowledgment or agreement may include, among other things, (i) acknowledgment of the responsibility for the sufficiency of the procedures to be performed by the Independent accountants for its purposes, (ii) releases by the Collateral Trustee (on behalf of itself and the Holders and beneficial owners) of claims against the Independent accountants and acknowledgment of other limitations of liability in favor of the Independent accountants, and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder (including to the TrusteeHolders). It is understood and agreed that the Collateral Trustee will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and the Collateral Trustee shall make no inquiry or investigation as to, and shall have no obligation in respect of, the sufficiency, validity or correctness of such procedures. The Collateral Trustee shall provide not be required to make any such Holder agreements that adversely affect the contact information for such accountantsBank in its individual capacity.
Appears in 1 contract
Samples: Indenture and Security Agreement (Varagon Capital Corp)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofagree to the procedures performed by such firm, the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (or Trustee and the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagementAdministrator to so agree; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures.
(b) On or before August 9th December 31st of each year commencing in 20202015, the Issuer shall cause to be delivered to the Trustee Trustee, the Collateral Manager and each Holder of the Notes upon written request therefor and subject to the execution of an agreement with the Independent certified public accountants, a statement report from a firm of Independent certified public accountants for each Distribution Report received since the last statement occurring in April and October of each year (i) indicating that such firm has performed agreed-upon procedures to recalculate certain of the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder holder of a Subordinated Notean Interest, the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder holder of Subordinated Notes an Interest with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Golub Capital BDC, Inc.)
Reports by Independent Accountants. (a) As of At the Closing Date, Date for a Series the Issuer shall appoint one or more firms a firm of Independent certified public accountants Accountants of recognized international national reputation as its Independent Accountants for purposes of reviewing and delivering rendering the reports or certificates of with respect to such accountants Series required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesSection 8.09. Upon any resignation by such firm or removal of such firm by the IssuerIndependent Accountants, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants Accountants of recognized international reputation, which may be a firm national reputation and shall notify the Trustee of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Managersuch appointment. If the Issuer shall fail to appoint a any successor to a firm of Independent certified public accountants Accountants which has resigned within 30 fifteen days after such resignation, the Issuer Trustee shall promptly notify the Trustee Issuer of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, thereafter the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, Issuer and shall have no obligation in respect of, the terms of any engagement of Independent accountants may be paid by the Issuer (or the Collateral Manager Trustee, on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable from amounts otherwise payable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree pursuant to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory processSection 8.02(d), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On The Issuer shall, or before August 9th the Trustee may, on behalf of the Issuer, direct the firm of Independent Accountants appointed pursuant to subsection (a) (or any successor firm so appointed) to review, and prepare and deliver to the Trustee a certificate or opinion with respect to
(i) each year commencing Payment Date Statement specified in 2020the related Terms Indenture and delivered by the Accounting Party pursuant to Section 2.09(e),
(ii) each Special Redemption Date Statement specified in the related Terms Indenture and delivered by the Accounting Party pursuant to Section 10.01(c) since the preceding Principal Payment Date (or since the Closing Date if no Payment Date has occurred), and
(iii) a sample, selected by such firm in a manner comparable to that which would have been used had such accountants been performing an audit in accordance with generally accepted auditing standards, of any Investment Statements prepared by the Accounting Party pursuant to Section 8.02(b) or Section 8.04(b) during the period covered by such Payment Date Statement. Such certificate or opinion shall state to the effect that
(i) such Independent Accountants have read such Payment Date Statement, each such Special Redemption Date Statement and such sample of Investment Statements,
(ii) they have performed the calculations required to be made pursuant to Sections 2.09(e) and 10.01(b),
(iii) they have reviewed the summary of transactions with respect to the Collection Account furnished by the Accounting Party with respect to the Due Period 135 covered by such Payment Date Statement and, in the case of the Distributions due in the last month of such Due Period but not yet received, the Issuer applicable information specified in Section 1.02(c), and
(iv) based upon such review, no exceptions to the Accounting Party's calculations set forth in any of such Statements have come to the attention of such firm of Independent Accountants, or that all of such exceptions are set forth in such report or certificate. Such certificate or opinion shall cause to be delivered to the Trustee Trustee, and a statement from a firm copy of Independent certified public accountants for each Distribution Report received since such certificate or opinion shall be delivered to the last statement (i) indicating that Issuer, prior to the calculations within those Distribution Reports have been performed in accordance with close of business on the applicable provisions of this Indenture and (ii) listing second Business Day following the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding related Debt Service Requirement Determination Dates; provided that in the event of a conflict between Date. If such firm of Independent certified public accountants and Accountants sets forth any exceptions to the Issuer with respect to any matter Accounting Party's Payment Date Statement in this Section 10.9its certificate or opinion, the determination by such firm of Independent public accountants Accounting Party's Payment Date Statement shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield deemed to maturity in respect of the relevant Note in order have been amended to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate reflect such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noteexceptions.
(c) Upon If the written request of Accounting Party shall fail to deliver to the Trustee, Report Recipient any Payment Date Statement or any Holder of a Subordinated NoteSpecial Redemption Date Statement by the due date therefor, the Issuer Report Recipient shall cause at the opening of business on the next Business Day following such due date direct the firm of Independent certified public accountants Accountants appointed pursuant to Section 10.9(asubsection (a) to provide any Holder of Subordinated Notes with all prepare and deliver to the Report Recipient such Payment Date Statement, at the expense of the information required to be provided Issuer, no later than 2:00 p.m. on the Business Day following the day on which such direction was given. Any fees of such Independent Accountants not paid by the Issuer may be paid by the Trustee, on behalf of the Issuer, only from amounts otherwise payable to the Issuer from the related Collection Account pursuant to Section 7.17 or assist the Issuer in the preparation thereof8.02(d).
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Standard Indenture Provisions (Fund America Investors Corp Ii)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer Issuer, at the direction of the Collateral Manager, shall appoint one or more firms a firm of Independent certified public accountants of recognized international reputation for purposes of reviewing preparing and delivering the reports or certificates of such the accountants required by this Indenture. Within 30 days of any resignation by the firm, which may be the firm Issuer, at the direction of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto firm that shall also be is a firm of Independent certified public accountants of recognized international reputation. If the Issuer, which may be a firm at the direction of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail , fails to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such the resignation, the Issuer Collateral Manager shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such the Independent certified public accountants and its successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation Issuer as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresAdministrative Expense.
(b) On or before August 9th the Payment Date in October of each year calendar year, commencing in 20202017, the Issuer shall cause to be delivered to the Trustee a statement and the Collateral Manager an agreed-upon procedures report from a firm of Independent certified public accountants for each Distribution Valuation Report received since the last statement (i) indicating that the calculations within those Distribution Valuation Reports have been performed recalculated and compared to the information provided by the Issuer in accordance with the applicable provisions of this Indenture and (ii) listing recalculating and comparing to the Aggregate Principal Balance of information provided by the Assets and Issuer, the Aggregate Principal Balance of the Collateral Obligations securing owned by the Secured Notes Issuer as of the immediately preceding Determination Dates; provided that Date as shown in the event of Valuation Report. If a conflict exists between such the firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.910.7, the determination findings by such that firm of Independent public accountants shall be conclusive. To The procedures in the extent a beneficial owner or Holder of a Note requests Accountants' Report issued to the yield to maturity in respect Issuer, shall be agreed on by the Collateral Manager on behalf of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteIssuer.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (NewStar Financial, Inc.)
Reports by Independent Accountants. (a) As Prior to the delivery of any reports or certificates of accountants required to be prepared pursuant to the Closing Dateterms hereof, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Portfolio Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of Notes. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Portfolio Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Portfolio Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Portfolio Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer as an Administrative Expense.
(b) In the event such firm requires the Trustee nor to agree to the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect ofprocedures performed by the accountants, the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagementTrustee to so agree; provided, however, it being understood that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, 113 and neither the Trustee nor the Collateral Administrator shall will make any no inquiry or investigation as to, or shall and will have any no obligation in respect of, the validity sufficiency, validity, or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Collateral Manager on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Collateral Manager of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Manager shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. In the event such firm requires the Collateral Agent and/or the Collateral Administrator to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent and/or the Collateral Administrator, as applicable, to so agree and directs the Collateral Agent or the Collateral Administrator to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent or the Collateral Administrator, as applicable (on behalf of itself and the Senior Lenders and Facility Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Senior Lenders and Facility Agent). It is understood and agreed that the Collateral Agent and the Collateral Administrator will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. Neither the Trustee Collateral Agent nor the Collateral Administrator shall have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent or the Collateral Administrator be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent and/or the Collateral Administrator in connection with this Section 5.28(a) shall be payable by the Borrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower, or the last Business Day immediately preceding such date if such date is not a Business Day, commencing in 20202019, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since the last statement (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Senior Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.28, the determination by such firm of Independent independent public accountants shall be conclusiveconclusive absent manifest or demonstrable error; provided further that, if there is any inconsistency between the calculations of the Borrower and the calculations of the firm of independent certified public accountants, the Borrower shall promptly notify the Facility Agent and the Senior Lenders and describe such inconsistency in reasonable detail. To In the extent a beneficial owner event such independent certified public accountants require the Custodian, the Facility Agent, the Collateral Administrator or Holder the Collateral Agent to agree to the procedures to be performed by such firm in any of a Note requests the yield reports required to maturity be prepared pursuant to this Section 5.28(b), the Borrower shall direct the Custodian, the Facility Agent, the Collateral Administrator or the Collateral Agent in writing to so agree. Notwithstanding anything to the contrary herein, if the Custodian, Facility Agent, the Collateral Administrator or Collateral Agent fail within 75 days following the end of each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants selected by the Borrower prior to the delivery of any report contemplated by this Section 5.28(b), then the Borrower shall have no obligation to furnish any report covering such fiscal year pursuant to this Section 5.28(b). In no event shall the Custodian, the Collateral Administrator or the Collateral Agent be required to execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request accounts that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noteit reasonably determines adversely affects it.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Credit Agreement (AB Private Credit Investors Corp)
Reports by Independent Accountants. (a) As of On the Closing Date, the Issuer (or the Collateral Advisor on behalf of the Issuer) shall appoint one or more firms a firm of Independent certified public accountants of recognized international reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesAgreement. Upon any removal of or resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Advisor on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Collateral Agent, the Trustee, each Hedge Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer (or the Collateral Advisor on behalf of the Issuer ) shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 thirty (30) days after such resignation, the Issuer (or the Collateral Advisor on behalf of the Issuer ) shall promptly notify each of the Trustee and each Hedge Counterparty of such failure in writingfailure. If the Issuer (or the Collateral Advisor on behalf of the Issuer ) shall not have appointed a successor within 10 ten (10) days thereafter, the Trustee Collateral Agent shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the IssuerIssuer in accordance with the Priority of Payments. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any Any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with letter appointing such Independent certified public accountants selected by shall contain appropriate limited recourse and non-petition language as against the Issuer or Collateral Manager in which the Trustee shall agree equivalent to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision contained in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresAgreement.
(b) No later than five (5) Business Days after the Closing Date, the Issuer shall deliver to each Rating Agency an agreed upon procedures letter from an Independent certified public accountant appointed by the Issuer in relation to the Issuer’s compliance with its obligations under this Agreement and the Trust Deed. On or before August 9th of each year commencing in 2020the Closing Date, the Issuer shall cause such Independent certified public accountant to be delivered deliver to each Rating Agency a report containing (i) a statement that the agreed upon procedures have been completed and (ii) such accountant’s findings with respect to the Trustee a statement from a firm Issuer’s compliance with its obligations under this Agreement and the Trust Deed. All expenses relating to the engagement of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions performance of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter services set forth in this Section 10.9, the determination by such firm of Independent public accountants 4.09(b) shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed borne by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a NoteIssuer.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither In the event such firm requires the Trustee nor and/or the Collateral Administrator shall have to agree to the procedures performed by such firm (with respect to any responsibility to make any inquiry of the reports of such accountants required or investigation as to, and shall have no obligation in respect ofcontemplated by this Indenture), the terms of any engagement of Independent accountants by Issuer hereby directs the Issuer (or Trustee and the Collateral Manager on behalf of the Issuer) or Administrator to so agree to the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected conditions requested by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled a condition to receiving documentation required by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, ; it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall Administrator will deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or and shall have any no obligation in respect of, the sufficiency, validity or correctness of such procedures. The Trustee and Collateral Administrator may require the delivery of an Issuer Order directing the execution of any such agreement or other acknowledgement required for the delivery of any report of such Independent accountants to the Trustee or Collateral Administrator under this Indenture or other Transaction Document. The Bank is hereby authorized, without liability on its part, to execute and deliver any acknowledgement or other agreement with such firm of Independent certified public accountants required for the Trustee (or Collateral Administrator, as applicable) to receive any of the reports or instructions provided for herein, which acknowledgement or agreement may include, among other things, (i) acknowledgement with respect to the sufficiency of the procedures to be performed by the Independent accountants, (ii) releases by the Trustee (on behalf of itself and/or the Holders) and the Collateral Administrator of any claims, liabilities, and expenses arising out of or relating to such Independent accountant’s engagement, agreed-upon procedures or any report issued by such Independent accountants under any such engagement and acknowledgement of other limitations of liability in favor of the Independent certified public accountants, and (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee or Collateral Administrator be required to execute any agreement in respect of the Independent accountants that the Trustee reasonably determines may subject it to risk of expenses or liability for which it is not adequately indemnified or otherwise adversely affects it.
(b) On or before August 9th of January 15 in each year calendar year, commencing in 20202026, the Issuer shall cause to be delivered to the Trustee a statement and the Collateral Administrator an Officer’s certificate of the Collateral Manager certifying that the Collateral Manager has received an agreed upon procedures report from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports (excluding the S&P CDO Monitor Test) have been performed recalculated and compared to the information provided by the Issuer in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes Debt as of the immediately preceding Determination Dates; provided provided, that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination finding by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Notebe conclusive.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated NoteNote (and subject to the execution of an agreement with the firm of Independent certified public accountants), the Issuer shall will cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Services Provider on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation reasonably acceptable to the Majority Lenders for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager Services Provider on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto reasonably acceptable to the Majority Lenders that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral ManagerServices Provider. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents, the Majority Lenders and the Services Provider of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Services Provider shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputationreputation reasonably acceptable to the Majority Lenders. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent in connection with this Section 5.34(a) shall be payable by the Borrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower, or the last Business Day immediately preceding such date if such date is not a Business Day, commencing in 20202021, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since occurring in March and September of the last statement prior calendar year (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.34, the determination by such firm of Independent independent public accountants shall be conclusive. To ; provided further that, if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent independent certified public accountants, the Borrower shall promptly notify the Agents and the Lenders and describe such inconsistency in reasonable detail. Notwithstanding anything to the contrary herein, if the Custodian, Administrative Agent, the Collateral Administrator or Collateral Agent fail within 75 days following the end of each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants appointed selected by the Issuer calculate such yield Borrower prior to maturity. The Trustee the delivery of any report contemplated by this Section 5.34(b), then the Borrower shall have no responsibility obligation to calculate the yield to maturity nor to verify the accuracy of furnish any report covering such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee fiscal year pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants5.34(b).
Appears in 1 contract
Samples: Credit Agreement (Owl Rock Technology Finance Corp.)
Reports by Independent Accountants. (a) As of At the Closing Date, the Issuer shall appoint one or more firms of Independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. The Issuer may remove any firm of Independent certified public accountants at any time without the consent of any Holder of NotesDebt. Upon any resignation by such firm or removal of such firm by the Issuer, the Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly appoint by Issuer Order delivered to the Trustee Trustee, the Collateral Administrator and the Rating Agency a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or the Collateral Manager. If the Issuer shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned within 30 days after such resignation, the Issuer shall promptly notify the Trustee and the Collateral Administrator of such failure in writing. If the Issuer shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. .
(b) On or before the 31st of December of each year, commencing in 2024, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for the Distribution Reports prepared in the prior year (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Debt as of the relevant Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.10, the determination by such firm of Independent public accountants shall be conclusive.
(c) Upon the written request of the Trustee, or any holder of a Subordinated Note, the Issuer will cause the firm of Independent certified public accountants appointed pursuant to Section 10.10(a) to provide any holder of Subordinated Notes with all of the information required to be provided by the Issuer or pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, however that the Trustee is and the Collateral Administrator shall be authorized, and are hereby directed (and shall have no liability or responsibility), to execute an any acknowledgement, access letterletter or other agreement with the Independent accountants required for the Trustee or the Collateral Administrator to receive any of the reports or instructions provided for herein, which acknowledgement, access letter or agreement may include, among other things, (i) acknowledgement that the Issuer has agreed that the procedures to be performed by the Independent accountants are sufficient for the Issuer’s purposes, (ii) releases by each of the Trustee and the Collateral Administrator (on behalf of itself and/or the Holders) of claims against the accountants and acknowledgment of any other limitations of liability in favor of the accountants and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent accountants (including to the Holders). Notwithstanding the foregoing, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which no event shall the Trustee shall agree or the Collateral Administrator be required to not disclose execute any agreement in respect of the contents of any statement Independent accountants that the Trustee or reports received from such accountants other than as specified in such access letter; providedthe Collateral Administrator reasonably determines adversely affects it. In addition, further, that the Trustee shall not deliver under be required to forward or otherwise disclose to the Holders any circumstances (other than as compelled report or statement received by legal or regulatory process), and without regard Independent accountants appointed pursuant to any other provision of this Indenture, Section 10.10. In the event a Holder wishes to any Holder, the Rating Agency or other party request any such statement report or report received statement, it must do so directly from such accountants. A Upon request, the Trustee shall provide to the requesting Holder may only obtain the contact information for such accountants. The Trustee shall not have any liability to any Holder relating to such accountant’s report or statement or report directly from such accountantsthe unavailability thereof. Notwithstanding any provision in this Indenture to the contrary, the Trustee and the Collateral Administrator shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.910.10, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall will deliver such acknowledgement, agreement or access letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such procedures.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the . The Collateral Manager. The Issuer may , on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee Trustee, each Hedge Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international national reputation, which may be a firm of Independent certified public accountants that performs accounting services for the Issuer or . If the Collateral Manager. If , on behalf of the Issuer Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Collateral Manager, on behalf of the Issuer, shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor as provided in the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th Within 60 days after December 31 of each year (commencing in 2020with December 31, 2007), the Issuer shall cause to be delivered to the Trustee, the Collateral Manager, each Hedge Counterparty, MBIA, for so long as it is deemed to be the Controlling Class hereunder, and each Rating Agency an Accountants' Report specifying the procedures applied and the associated findings with respect to the Monthly Reports, the Notes Valuation Reports and any Redemption Date Statements prepared in the year ending on such date. At least 60 days prior to the Payment Date in April 2007 (and, if at any time a successor firm of Independent certified public accountants is appointed, to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant's Report specifying in advance the procedures that such firm will apply in making the aforementioned findings throughout the term of its service as accountants to the Issuer. The Trustee shall promptly forward a statement from copy of such Accountant's Report to the Collateral Manager and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. The Issuer shall not approve the institution of such procedures if a Majority of the Aggregate Outstanding Amount of Notes of the Controlling Class, by written notice to the Issuer and the Trustee within 30 days after the date of the related notice to the Trustee, object thereto.
(c) If any Hedge Counterparty is required to post collateral pursuant to the related Hedge Agreement during any Due Period, then on or prior to the Payment Date following such Due Period and on or prior to each anniversary of such Payment Date the Issuer shall cause a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating to review and verify that the calculations within those Distribution Reports have been performed value of collateral posted is in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noterelated Hedge Agreement.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (Arbor Realty Trust Inc)
Reports by Independent Accountants. (a) As of On or after the Closing Rating Effective Date, the Issuer Borrower (or the Collateral Manager on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Collateral Manager of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Manager shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. Neither In the Trustee nor event such firm requires the Collateral Administrator Agent to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent to so agree and directs the Collateral Agent to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. The Collateral Agent shall not have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent in connection with this Section 5.34(a) shall be payable by the Borrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower, or the last Business Day immediately preceding such date if such date is not a Business Day, commencing in 20202024, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since occurring in October and January of the last statement prior calendar year (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.34, the determination by such firm of Independent independent public accountants shall be conclusive. To ; provided further that, if there is any inconsistency between the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect calculations of the relevant Note in order to determine any “original issue discount” in respect thereof, Borrower and the Trustee shall request that calculations of the firm of Independent independent certified public accountants, the Borrower shall promptly notify the Agents, the Subordinated Noteholders and the Lenders and describe such inconsistency in reasonable detail. Notwithstanding anything to the contrary herein, if the Custodian, the Administrative Agent, the Collateral Administrator or the Collateral Agent fail within 75 days following the end of each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants appointed selected by the Issuer calculate such yield Borrower prior to maturity. The Trustee the delivery of any report contemplated by this Section 5.34(b), then the Borrower shall have no responsibility obligation to calculate the yield to maturity nor to verify the accuracy of furnish any report covering such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee fiscal year pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants5.34(b).
Appears in 1 contract
Samples: Credit Agreement (Golub Capital Private Credit Fund)
Reports by Independent Accountants. (a) As of the Closing Date, the Issuer shall appoint one or more firms Borrower has appointed a firm of Independent independent certified public accountants of recognized international reputation accountants, independent auditors or independent consultants (together with its successors, the “Independent Accountants”), in each case reasonably acceptable to the Administrative Agent and the Required Lenders, for purposes of reviewing and delivering the reports or certificates of such accountants required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent certified public accountants Accountants at any time upon notice to, but without the consent of any Holder of Notesof, the Lenders. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint appoint, by Issuer Order a certificate of a Responsible Officer of the Borrower delivered to the Trustee Administrative Agent and the Rating Agency Custodian, a successor thereto that shall also be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants of recognized international reputationstanding, which may be a firm of Independent independent certified public accountants accountants, independent auditors or independent consultants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned Accountants within 30 thirty (30) days after such resignation, the Issuer Borrower shall promptly notify the Trustee Administrative Agent and the Collateral Manager of such failure in writing. If writing and the Issuer shall not have appointed a successor within 10 days thereafter, the Trustee Collateral Manager shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants Accountant of recognized international reputationstanding. The fees of such Independent certified public accountants Accountants and its any successor shall be payable by the Issuer. Neither the Trustee nor the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresBorrower.
(b) On or before August 9th of each year commencing in 2020, the Issuer shall cause to be delivered to the Trustee a statement from a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating that the calculations within those Distribution Reports have been performed in accordance with the applicable provisions of this Indenture and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of a conflict between such firm of Independent certified public accountants and the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Reports by Independent Accountants. (a) As of On or after the Closing Date, the Issuer Borrower (or the Collateral Manager on behalf of the Borrower) shall appoint select one or more nationally recognized firms of Independent independent certified public accountants of recognized international reputation for purposes of reviewing and delivering the reports or certificates of such accountants performing agreed-upon procedures required by this IndentureAgreement, which may be the firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. The Issuer Borrower may remove any firm of Independent independent certified public accountants at any time without the consent of any Holder of Notestime. Upon any resignation by such firm or removal of such firm by the IssuerBorrower, the Issuer Borrower (or the Collateral Manager on behalf of the IssuerBorrower) shall promptly appoint by Issuer Order delivered to the Trustee and the Rating Agency a successor thereto that shall also be a nationally recognized firm of Independent independent certified public accountants of recognized international reputationaccountants, which may be a firm of Independent independent certified public accountants that performs accounting services for the Issuer Borrower or the Collateral Manager. If the Issuer Borrower shall fail to appoint a successor to a firm of Independent independent certified public accountants which has resigned or has been removed within 30 days after such resignationresignation or removal (as applicable), the Issuer Borrower shall promptly notify the Trustee Agents and the Collateral Manager of such failure in writing. If the Issuer Borrower shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who Manager shall appoint a successor firm of Independent independent certified public accountants of nationally recognized international reputation. The fees of such Independent firm of independent certified public accountants and its successor shall be payable by the IssuerBorrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement. In the event such firm requires the Collateral Agent and/or the Collateral Administrator to agree (whether in writing or otherwise) to the procedures performed by such firm, the Borrower hereby directs the Collateral Agent and/or the Collateral Administrator, as applicable, to so agree and directs the Collateral Agent or the Collateral Administrator to execute a specified user agreement, access letter or agreement of similar import requested by such accountants, which may include among other things, (i) acknowledgement that the Borrower has agreed that the procedures to be performed by such accountants are sufficient for the Borrower’s purposes, (ii) releases by the Collateral Agent or the Collateral Administrator, as applicable (on behalf of itself and the Lenders and Administrative Agent) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm (including to the Lenders and Administrative Agent). It is understood and agreed that the Collateral Agent and the Collateral Administrator will deliver such letters of agreement and similar documents in conclusive reliance on the foregoing direction of the Borrower. Neither the Trustee Collateral Agent nor the Collateral Administrator shall have any responsibility to the Borrower or any Secured Party hereunder to make any inquiry or investigation as to, and shall have no obligation obligation, liability or responsibility in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any actionfirm, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresprocedures or content of such letter (including without limitation with respect to the sufficiency thereof for any purpose), any report or instruction (or other information or documents) prepared or delivered by any such accountants pursuant to any such engagement. In no event shall the Collateral Agent or the Collateral Administrator be required to execute any agreement in respect of the accountants that it reasonably determines adversely affects it. For the avoidance of doubt, any costs, fees or expenses incurred by the Collateral Agent and/or the Collateral Administrator in connection with this Section 5.36(a) shall be payable by the Borrower as Administrative Expenses in accordance with the Priority of Payments and the terms of this Agreement.
(b) On or before August 9th the date that is 120 days following the end of each fiscal year of the Borrower, or the last Business Day immediately preceding such date if such date is not a Business Day, commencing in 20202023, the Issuer Borrower shall cause to be delivered to the Trustee a statement Collateral Agent an agreed-upon procedures report from a firm of Independent independent certified public accountants appointed pursuant to clause (a) above for each Distribution Payment Date Report received since the last statement (i) indicating that the calculations within those Distribution Payment Date Reports have been performed recalculated and compared to the information provided by the Borrower in accordance with the applicable provisions of this Indenture Agreement and (ii) listing the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations Loans securing the Secured Notes Loans as of the immediately preceding Determination Measurement Dates; provided that in the event of a conflict between such firm of Independent independent certified public accountants and the Issuer Borrower with respect to any matter in this Section 10.95.36, the determination by such firm of Independent independent public accountants shall be conclusive; provided further that, if there is any inconsistency between the calculations of the Borrower and the calculations of the firm of independent certified public accountants, the Borrower shall promptly notify the Administrative Agent and the Lenders and describe such inconsistency in reasonable detail. To In the extent a beneficial owner event such independent certified public accountants require the Administrative Agent, the Collateral Administrator or Holder the Collateral Agent to agree to the procedures to be performed by such firm in any of a Note requests the yield reports required to maturity be prepared pursuant to this Section 5.36(b), the Borrower shall direct the Administrative Agent, the Collateral Administrator or the Collateral Agent in writing to so agree. Notwithstanding anything to the contrary herein, if the Administrative Agent, the Collateral Administrator or Collateral Agent fail within 75 days following the end of each fiscal year of the Borrower to execute any documentation required by the independent certified public accountants selected by the Borrower prior to the delivery of any report contemplated by this Section 5.36(b), then the Borrower shall have no obligation to furnish any report covering such fiscal year pursuant to this Section 5.36(b). In no event shall the Collateral Administrator or the Collateral Agent be required to execute any agreement in respect of the relevant Note in order to determine any “original issue discount” in respect thereof, the Trustee shall request accounts that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Noteit reasonably determines adversely affects it.
(c) Upon the written request of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereof.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Credit Agreement (AB Private Credit Investors Corp)
Reports by Independent Accountants. (a) As of On or about the Closing Date, the Issuer shall appoint one or more firms a firm of Independent certified public accountants of recognized international national reputation for purposes of reviewing preparing and delivering the reports or certificates of such accountants required by this Indenture, which may be the firm of Independent certified public accountants that performs accounting services for the Issuer or the . The Collateral Manager. The Issuer may , on behalf of the Issuer, shall have the right to remove such firm or any firm of Independent certified public accountants at any time without the consent of any Holder of Notessuccessor firm. Upon any resignation by such firm or removal of such firm by the Issuerfirm, the Issuer (or the Collateral Manager Manager, on behalf of the Issuer) , shall promptly appoint appoint, by Issuer Order delivered to the Trustee Trustee, each Hedge Counterparty, each Synthetic Asset Counterparty and the each Rating Agency Agency, a successor thereto that shall also be a firm of Independent certified public accountants of recognized international reputation, which may be national reputation and shall provide notice to a firm designated representative of Independent certified public accountants that performs accounting services for the Issuer or Controlling Class. If the Collateral Manager. If , on behalf of the Issuer Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignationresignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Issuer Collateral Manager, on behalf of the Issuer, shall not have appointed a successor within 10 ten days thereafter, the Trustee shall promptly notify the Collateral Manager, who shall appoint a successor firm of Independent certified public accountants of recognized international national reputation. The fees of such Independent certified public accountants and its successor shall be payable by the Issuer. Neither Issuer or by the Trustee nor as provided in the Collateral Administrator shall have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms Priority of any engagement of Independent accountants by the Issuer (or the Collateral Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided, however, that the Trustee is hereby directed to execute an access letter, in form and substance acceptable to the Trustee, with such Independent certified public accountants selected by the Issuer or Collateral Manager in which the Trustee shall agree to not disclose the contents of any statement or reports received from such accountants other than as specified in such access letter; provided, further, that the Trustee shall not deliver under any circumstances (other than as compelled by legal or regulatory process), and without regard to any other provision of this Indenture, to any Holder, the Rating Agency or other party any such statement or report received from such accountants. A Holder may only obtain such statement or report directly from such accountants. Notwithstanding any provision in this Indenture to the contrary, the Trustee shall have no liability or responsibility for taking any action, or omitting to take any action, if such action or omission is in accordance with this Section 10.9, it being understood and agreed that the Trustee and/or the Collateral Administrator, as the case may be, shall deliver such letter of agreement in conclusive reliance on the foregoing direction of the Issuer, and neither the Trustee nor the Collateral Administrator shall make any inquiry or investigation as to, or shall have any obligation in respect of, the validity or correctness of such proceduresPayments.
(b) On or before August 9th No later than March 31 of each year (commencing in 2020with March 31, 2008), the Issuer shall cause to be delivered to the Trustee, the Collateral Manager and each Rating Agency an Accountants’ Report specifying the procedures applied and the associated findings with respect to the Monthly Reports, the Note Valuation Reports and any Redemption Date Statements prepared in the year ending on such date. The scope of the Accountants’ Report shall include recomputing the following, where applicable: Aggregate Principal Amount of the Collateral Interests, amounts distributed per the Priority of Payments, Class balances and factors, Coverage Tests, Collateral Quality Tests and Eligibility Criteria. At least 60 days prior to the Payment Date in March 2008 (and, if at any time a successor firm of Independent certified public accountants is appointed, to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee an Accountant’s Report specifying in advance the procedures that such firm will apply in making the aforementioned findings throughout the term of its service as accountants to the Issuer. The Trustee shall promptly forward a statement from copy of such Accountant’s Report to the Collateral Manager and each Holder of Notes of the Controlling Class, at the address shown on the Note Register. The Issuer shall not approve the institution of such procedures if a Majority of the Aggregate Outstanding Amount of Notes of the Controlling Class, by written notice to the Issuer and the Trustee within 30 days after the date of the related notice to the Trustee, object thereto.
(c) If any Hedge Counterparty is required to post collateral pursuant to the related Hedge Agreement during any Due Period, then on or prior to the Payment Date following such Due Period and on or prior to each anniversary of such Payment Date the Issuer shall cause a firm of Independent certified public accountants for each Distribution Report received since the last statement (i) indicating to review and verify that the calculations within those Distribution Reports have been performed value of collateral posted is in accordance with the applicable provisions of this Indenture the related Hedge Agreement.
(d) If any Synthetic Asset Counterparty is required to post collateral pursuant to the related Synthetic Asset during any Due Period, then on or prior to the Payment Date following such Due Period and (ii) listing on or prior to each anniversary of such Payment Date the Aggregate Principal Balance of the Assets and the Aggregate Principal Balance of the Collateral Obligations securing the Secured Notes as of the immediately preceding Determination Dates; provided that in the event of Issuer shall cause a conflict between such firm of Independent certified public accountants to review and verify that the Issuer with respect to any matter in this Section 10.9, the determination by such firm of Independent public accountants shall be conclusive. To the extent a beneficial owner or Holder of a Note requests the yield to maturity in respect value of the relevant Note collateral posted is in order to determine any “original issue discount” in respect thereof, accordance with the Trustee shall request that the firm of Independent certified public accountants appointed by the Issuer calculate such yield to maturity. The Trustee shall have no responsibility to calculate the yield to maturity nor to verify the accuracy of such Independent certified public accountants’ calculation. If the firm of Independent certified public accountants fails to calculate such yield to maturity, the Trustee shall have no responsibility to provide such information to the beneficial owner or Holder of a Note.
(c) Upon the written request applicable provisions of the Trustee, or any Holder of a Subordinated Note, the Issuer shall cause the firm of Independent certified public accountants appointed pursuant to Section 10.9(a) to provide any Holder of Subordinated Notes with all of the information required to be provided by the Issuer pursuant to Section 7.17 or assist the Issuer in the preparation thereofrelated Synthetic Asset.
(d) Any statement or report delivered to the Trustee pursuant to this Section 10.9 from the firm of Independent certified public accountants may be requested by any Holder directly from such accountants. Upon written request from a Holder to the Trustee, the Trustee shall provide to such Holder the contact information for such accountants.
Appears in 1 contract
Samples: Indenture (CBRE Realty Finance Inc)
