Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14. (b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation. (c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”). (d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied. (e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto. (f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession. (g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below. (h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 2 contracts
Samples: Collateral Management Agreement (KCAP Financial, Inc.), Collateral Management Agreement (TICC Capital Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds proceeds, if any, of such liquidation to the NoteholdersHolders of the Secured Debt and the holders of the Preferred Shares, (ii) the payment in full of the Notes, Secured Debt and the satisfaction and discharge of the Indenture and the Credit Agreement in accordance with its their terms or (iii) the early termination of this Agreement with respect to the Collateral Manager in accordance with Section 12(b12(c), (c), (d), (ein connection with the resignation of such Collateral Manager pursuant to Section 12(b) or (f) or in connection with the removal of such Collateral Manager pursuant to Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, resign upon 60 ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders, the Trustee and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Fiscal Agent; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to or termination of this Agreement with respect to such Collateral Manager in connection with such resignation or removal shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) or Section 12(e) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Secured Debt is Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders), the Fiscal Agent and each Rating Agency (provided, however, in the case of Fitch, only for so long as any Class A-1 Debt remains Outstanding) and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Preferred Shares, which institution (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class (disregarding any Collateral Manager Notes).
(e) A If (i) a Majority of the Preferred Shares fails to nominate a successor within thirty (30) days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will (disregarding any Collateral Manager Notes) does not approve the proposed successor nominated by the Holders of the Preferred Shares within twenty (20) days of the date of the notice of such nomination, then a Majority of the Controlling Class (disregarding any Collateral Manager Notes) shall, within sixty (60) days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Preferred Shares approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within ninety (d90) above days (other than subclause or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within thirty (v30) thereofdays) following the notice of the termination or resignation or removal of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and a Majority of the Controlling Class (disregarding any Collateral Manager and such proposed successor will be appointed Notes) shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in any such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any Holder of any Secured Debt or any holder of any Preferred Shares.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(bSection 8(a) (except such portion of the Collateral Management Fee due and payable to the former Collateral Manager as set forth in Section 8(d)) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Secured Debt (in each case including Collateral Manager Notes) and of 100% of the holders of the Preferred Shares. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person Person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) In connection with any vote under this Agreement, in determining whether the Holders of the requisite Aggregate Outstanding Amount have given any request, demand, authorization, direction, notice, consent or waiver or made any proposal, if Collateral Manager Notes are disregarded and deemed not to be outstanding in connection with such vote and a Class of Secured Debt entitled to vote is comprised entirely of Collateral Manager Notes, then the most senior Class of Secured Debt that is not comprised entirely of Collateral Manager Notes shall be entitled to exercise the specified voting rights, disregarding any Collateral Manager Notes, in lieu of such other Class of Secured Debt.
(h) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hi) belowof this Section 12.
(hi) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 2 contracts
Samples: Collateral Management Agreement, Collateral Management Agreement (PennantPark Floating Rate Capital Ltd.)
Term Termination. (a) This Until this Agreement is terminated in accordance with its terms, this Agreement shall commence as be in effect until [ ], 2012 (the “Initial Term”) and shall be automatically renewed for a one-year term (a “Renewal Term”) upon the expiration of the Initial Term and on each anniversary date first set forth above and shall continue in force until the first thereafter unless at least two-thirds of all of the following occurs: Independent Directors or the holders of a majority of the outstanding shares of common stock (other than those shares held by Pine River or its affiliates) agree that (i) there has been unsatisfactory performance by the final liquidation of Manager that is materially detrimental to the Assets Company and the final distribution of the proceeds of such liquidation to the Noteholders, Subsidiaries or (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice compensation payable to the Issuer (or such shorter notice as Manager hereunder is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)unfair; provided that the Collateral Company shall not have the right to terminate this Agreement under clause (ii) above if the Manager agrees to continue to provide the services under this Agreement at a reduced fee that at least two-thirds of all of the Independent Directors determines to be fair pursuant to the procedure set forth below. If the Company elects not to renew this Agreement at the expiration of the Initial Term or any Renewal Term as set forth above, the Company shall deliver to the Manager prior written notice (the “Termination Notice”) of the Company’s intention not to renew this Agreement based upon the terms set forth in this Section 13(a) not less than 180 days prior to the expiration of the then existing term. If the Company so elects not to renew this Agreement, the Company shall designate the date (the “Effective Termination Date”), not less than 180 days from the date of the notice, on which the Manager shall cease to provide services under this Agreement, and this Agreement shall terminate on such date; provided, however, that in the event that such Termination Notice is given in connection with a determination that the compensation payable to the Manager is unfair, the Manager shall have the right to resign immediately upon renegotiate such compensation by delivering to the effectiveness Company, no fewer than 45 days prior to the prospective Effective Termination Date, written notice (any such notice, a “Notice of any material change in applicable law or regulations which renders Proposal to Negotiate”) of its intention to renegotiate its compensation under this Agreement. Thereupon, the performance Company (represented by the Collateral Independent Directors) and the Manager shall endeavor to negotiate the revised compensation payable to the Manager under this Agreement. In the event that the Manager and at least two-thirds of its duties hereunder or under all of the Indenture Independent Directors agree to the terms of the revised compensation to be a violation payable to the Manager within 45 days following the receipt of the Notice of Proposal to Negotiate, the Termination Notice shall be deemed of no force and effect and this Agreement shall continue in full force and effect on the terms stated in this Agreement, except that the compensation payable to the Manager hereunder shall be the revised compensation then agreed upon by the parties to this Agreement. The Company and the Manager agree to execute and deliver an amendment to this Agreement setting forth such revised compensation promptly upon reaching an agreement regarding same. In the event that the Company and the Manager are unable to agree to the terms of the revised compensation to be payable to the Manager during such 45-day period, this Agreement shall terminate, such termination to be effective on the date which is the later of (A) 10 days following the end of such law 45-day period and (B) the Effective Termination Date originally set forth in the Termination Notice.
(b) In recognition of the level of the upfront effort required by the Manager to structure and acquire the assets of the Company and the Subsidiaries and the commitment of resources by the Manager, in the event that this Agreement is terminated in accordance with the provisions of Section 13(a) or regulationSection 15(b) of this Agreement, the Company shall pay to the Manager, on the date on which such termination is effective, a termination fee (the “Termination Fee”) equal to three times the sum of the average annual Base Management Fee earned by the Manager during the 24-month period immediately preceding the date of such termination, calculated as of the end of the most recently completed fiscal quarter prior to the date of termination. The obligation of the Company to pay the Termination Fee shall survive the termination of this Agreement.
(c) No resignation later than 180 days prior to the anniversary date of this Agreement of any year during the Initial Term or removal Renewal Term, the Manager may deliver written notice to the Company informing it of the Collateral Manager’s intention to decline to renew this Agreement, whereupon this Agreement shall not be renewed and extended and this Agreement shall terminate effective on the anniversary date of this Agreement next following the delivery of such notice. The Company is not required to pay to the Manager the Termination Fee if the Manager terminates this Agreement pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”Section 13(c).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to Section 13 or Section 15 of this Section 12Agreement, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder9, 10, 13(b), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g15(b), 15and 16 of this Agreement. In addition, 17Sections 11, 21, 22, 23 13(d) and 25 21 of this Agreement shall survive any termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 2 contracts
Samples: Management Agreement (Two Harbors Investment Corp.), Management Agreement (Capitol Acquisition Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and , the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Xxxxxxxxxx Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 2 contracts
Samples: Collateral Management Agreement (Blue Owl Capital Corp III), Collateral Management Agreement (Blue Owl Capital Corp II)
Term Termination. (a) This Agreement shall commence as be effective on the date set forth above, provided it has been approved by (i) the Board of Directors of the Company, (ii) the Board of Trustees of the Trust, including the vote of a majority of the Disinterested Trustees of the Trust, in the manner required by Section 15 of the 1940 Act (after taking into effect any exemptive order, no-action assurances or other relief upon which the Company or Trust may rely) and (iii) a vote of a majority of the outstanding voting securities of the Fund. This Agreement shall continue in effect until the two-year anniversary of the date first set forth above of its effectiveness, unless and until terminated as hereinafter provided, and shall continue in force until the first of the following occurs: from year to year thereafter, but only as long as such continuance is specifically approved by (i) the final liquidation Board of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersDirectors, (ii) the payment in full vote of the Notes, and the satisfaction and discharge holders of a majority of the Indenture in accordance with its terms outstanding voting securities of the Fund or the Board of Trustees of the Trust and (iii) the early termination vote of this a majority of the Disinterested Trustees of the Trust provided in the manner required by Section 15 of the 1940 Act (after taking into effect any exemptive order, no-action assurances or other relief upon which the Company or Trust may rely). This Agreement shall automatically terminate in accordance with Section 12(b)the event of its assignment, and may be terminated at any time without payment of any penalty by the Board of Trustees of the Trust, by the Company or by the Adviser upon sixty (c), (d), (e60) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (other parties. The Company may effect termination by action of the Board of Directors or such shorter notice as is acceptable to by vote of a majority of the Issuer) outstanding voting securities of the Company, accompanied by appropriate notice. This Agreement shall also terminate automatically and immediately upon the Trustee (and termination of the Issuer Management Agreement, the Fund Management Agreement or Fund Sub-Advisory Agreement. The shareholders of the Fund may therefore terminate this Agreement by terminating the Fund Sub-Advisory Agreement or Fund Management Agreement. This Agreement may be terminated, at any time, without the payment of any penalty, by the Board of Directors of the Company, by the Board of Trustees of the Trust or by vote of a majority of the outstanding voting securities of the Company, in the event that it shall direct the Trustee to distribute have been established by a copy court of such notice to the Holders within five (5) Business Days of receipt); provided competent jurisdiction that the Collateral Manager Sub-Adviser, or any officer or director of the Sub-Adviser, has taken any action which results in a breach of the material covenants of the Sub-Adviser set forth herein. Termination of this Agreement shall not affect the right of the Sub-Adviser to receive payments on any unpaid balance of the compensation, described in Section 5, or obligation of the Sub-Adviser to pay its expenses as described in Sections 3 and 5 earned prior to such termination and for any additional period during which the Sub-Adviser serves as such for the Company, subject to applicable law. The terms “assignment” and “vote of the majority of outstanding voting securities” herein shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures same meanings set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedrules and regulations thereunder.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (First Trust Exchange-Traded Fund), Investment Sub Advisory Agreement (First Trust Exchange-Traded Fund)
Term Termination. The initial term of this Agreement shall commence on the Effective Date and expire on the fifth (5th) 12-month anniversary of the Product Launch Date of the Product. This Agreement will automatically renew for additional ** **-year periods, unless notice of cancellation is delivered by either Party at least ** ** days prior to the end of the then current term. Notwithstanding the above, this Agreement shall terminate:
(a) This subject to Section 7.1(b), ** ** days after notice of a material breach from one Party to the other, but only if such breach remains uncured at the end of such ** ** period; provided, however, that this Agreement shall commence as terminate immediately upon notice of breach to a Party if the date first set forth above and shall continue in force until same or similar material breach was the first subject of a previous notice of breach pursuant to which a ** ** cure period was previously provided to such Party;
(b) subject to the following occursForce Majeure provisions of Section 7.3, immediately upon notice from Buyer if: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, Seller does not satisfy Buyer’s binding purchase order requirements for any ** ** consecutive months; (ii) Buyer determines in good faith that ** ** or more of any particular Product manufactured and delivered to Buyer during a calendar month is defective, or does not meet the payment in full Specifications for such Product, anytime after ** ** of the Notes, and the satisfaction and discharge term of the Indenture in accordance with its terms or this Agreement; (iii) Buyer believes in good faith that Seller's quality assurance policies do not comply with Section 3; or (iv) Buyer reasonably determines that any material breach hereunder does or may negatively impact the early termination performance of this Agreement any of Buyer’s Products, Buyer’s reputation, patient safety or the safety of any other persons or the environment;
(c) in accordance with Section 12(b), (c), (d), (e) 7.3 or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).7.4 hereof;
(d) Promptly after immediately upon notice from a Party if the other Party has become the subject of any removal under Section 14 voluntary or any resignation involuntary bankruptcy, receivership, or insolvency proceedings;
(e) following ** ** written notice from Buyer of the Collateral Manager that is its intent to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee terminate for convenience;
(f) immediately upon notice from Seller if Buyer fails to transmit copies of such notice make payments to the Holders and each Rating Agency and shall appoint a successor Collateral Manager Seller in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunderprovisions of Section 2.2, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedabove.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 2 contracts
Samples: Distribution Agreement (Bovie Medical Corp), Distribution Agreement (Bovie Medical Corp)
Term Termination. The term of this Agreement (athe "Term") will commence on the Effective Date and will continue until the earlier of (1) eighteen (18) months after the Effective Date, (2) the date on which Clearwire has used all of the Prepaid Royalties for accessing Future Spectrum Capacity pursuant to this agreement, or (3) the date on which Licensee has returned to Clearwire (in cash) the entire amount of the Prepaid Royalties that has not been used for accessing Future Spectrum Capacity pursuant to this Agreement. Clearwire shall have the right, in its sole discretion, to extend the Term at any time prior to its expiration under clause (1) above; provided, that the Term shall not extend beyond the first to occur of the events described in clauses (2) or (3) above except as it pertains to [***]. This Agreement shall commence as may be terminated prior to expiration of the date first set forth above and shall continue in force until the first Term under any of the following occurscircumstances: (i) the final liquidation by mutual written agreement of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, parties; (ii) by Clearwire, upon giving written notice to Licensee in the payment in full Event of the Notes, and the satisfaction and discharge Default; provided that such Event of the Indenture in accordance with its terms or Default is not cured (if it is capable of being cured) within [***] following such notice; (iii) by Licensee, upon giving written notice to Clearwire in the early Event of Default; provided that with respect to an Event of Default that is a payment default, it is not cured in [***] following such notice, and with respect to all other Events of Default (that are of a type capable of being cured) such Event of Default is not cured within [***] thereof; or (iv) by Clearwire upon written notice to Licensee and to the extent allowed under law, if Licensee files a petition pursuant to Title 7 or 11 of the United States Bankruptcy Code or is adjudged a debtor after the filing of an involuntary bankruptcy petition against Licensee, or if Licensee files a petition for relief pursuant to any state insolvency laws. Upon termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) belowfor any cause, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement Prepaid Royalties Balance shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant refunded to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are OutstandingClearwire, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) belowSection 2.02.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 2 contracts
Samples: Master Royalty and Use Agreement (Clearwire Corp), Master Royalty and Use Agreement (Clearwire Corp)
Term Termination.
12.1 This Agreement is effective, and You receive access to the Course Content and the Platform as per the moment of Registration and continue:
(a) This Agreement shall commence for as of long as the date first set forth above and shall continue in force Course Content is available on the Platform; or
(b) until You cancel this Agreement; or
(c) until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of Service Provider terminates this Agreement in accordance with Section 12(b), this clause 12.
12.2 The Service Provider shall be entitled to terminate this Agreement by email to You with immediate effect and thus without observing a notice period and without being liable or any compensation being due if:
(c), (d), (ea) or (f) or Section 14.any payment that is due under this Agreement has not been received by the Service Provider in full and on time;
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy You breach any of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or Your obligations under the Indenture to be a violation of such law or regulation.this Agreement;
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until Course Content is no longer available on the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).Platform; or
(d) Promptly after notice of necessary to satisfy any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstandingrequirements, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunderconditions, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becomingguidelines, or require the pool opinions contained in any directive, order, opinion, or ruling of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfieda public authority.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) 12.3 If this Agreement is terminated or cancelled, which termination or cancellation can only occur on the basis of and in accordance with the relevant provisions of this Agreement, then:
(a) the License shall be revoked with immediate effect upon termination;
(b) Your Account shall be terminated;
(c) access to the Platform and the Course Content by You shall be revoked and terminated;
(d) You shall cease and abstain from the use of and delete the Course Content from any location You have shared or stored the Course Content;
(e) all rights and obligations of the Parties under this Agreement shall end and become ineffective, except for:
(i) the rights and obligations accrued before that date;
(ii) any rights and (payment) obligations of or pursuant to clauses 9 (Payment & access); and
(iii) any rights and obligations of or pursuant to clauses 13 through 26, which will remain in full force and effect after termination of this Section 12, Agreement; and
(f) such termination shall be without prejudice to any further liability rights a Party may have vis m vis the other Party in connection with a breach of any provision of or obligation of either party under this Agreement occurring prior to the other, except as provided in clause (h) belowtheir termination.
(h) Sections 6, 7 (with respect 12.4 If this Agreement is terminated due to any indemnity of the reasons listed under clause 12.2(a) or insurance provided thereunder12.2(b), 8 (with respect the Service Provider is entitled to refuse You access to any accrued and unpaid Collateral Management Feesother courses, (digital) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14products and/or services at the Service Provider’s sole discretion.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full or redemption in whole of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Holders; or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fc) or Section 1413. In the absence of the circumstances described in clause (i) or (ii) of the preceding sentence, no termination of this Agreement or any removal or resignation of the Collateral Manager shall be effective until written acceptance of appointment by a successor Collateral Manager and the effective assumption by such successor collateral manager of the duties of the Collateral Manager have been received. The Collateral Manager hereby acknowledges and agrees that the Collateral Manager shall continue to perform its obligations hereunder and under the Indenture in the manner provided herein and therein until the payment in full or redemption in whole of the Securities and the termination of the Indenture in accordance with its terms unless any of the events described in clause (ii) or (iii) of the second preceding sentence occur prior thereto.
(b) Subject only Notwithstanding any other provision hereof to clause (c) belowthe contrary, this Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer and the Trustee (or such shorter notice as is acceptable to the Issuer) Issuer and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which that renders the performance by the Collateral Manager of its duties hereunder under this Agreement or under the Indenture to be a violation of such law or regulation). The Issuer shall use its best efforts to appoint a successor Collateral Manager to assume such duties and obligations.
(c) No resignation or removal of the Collateral Manager pursuant to this This Agreement shall be effective until automatically terminated in the date as event that the Board of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of Managers determines in good faith that the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 Issuer or any resignation portion of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets has become required to be registered as, register as an investment company under the 1940 provisions of the Investment Company Act by virtue of any action taken by the Collateral Manager (and (v) with respect to which such requirement has not been eliminated after a period of 45 days), and the Global Rating Agency Condition has been satisfiedIssuer notifies the Collateral Manager thereof.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 2(h)(i), 6, 8(c), 10, 14, 15 and 33, which provisions shall survive the termination of this Agreement.
(e) Within 30 days of the resignation, termination or removal of the Collateral Manager pursuant to Section 12 or 13 while any of the Securities are outstanding, a Majority of the Preferred Interests shall propose a successor Collateral Manager to the Issuer that satisfies the criteria set forth in clause (hg) belowbelow by delivering notice thereof to the Trustee, the Collateral Manager and the Holders of the Controlling Class. A Majority of the Controlling Class shall have 30 days from receipt of such notice to (i) object to such successor collateral manager, and (ii) propose a successor collateral manager that satisfies the criteria set forth in clause (g) below by delivering notice of such objection and proposed successor to the Trustee, the Collateral Manager and the Holders of the Preferred Interests. If no such notice is received by the Trustee within such time period, such proposed successor collateral manager shall be appointed Collateral Manager. If, however, such notice is received by the Trustee within such time period, a Majority of the Preferred Interests shall have 30 days from receipt of such notice to (i) object to such successor collateral manager, and (ii) propose a successor collateral manager that satisfies the criteria set forth in clause (g) below by delivery of notice of such objection and proposed successor to the Trustee, the Collateral Manager and the Holders of the Controlling Class. If no such notice is received by the Trustee within such time period, such proposed successor collateral manager shall be appointed Collateral Manager. If, however, such notice is received by the Trustee within such time period, a Majority of the Controlling Class shall have 30 days from receipt of such notice to (i) object to such successor collateral manager, and (ii) propose a successor collateral manager that satisfies the criteria set forth in clause (g) below by delivery of notice of such objection and proposed successor to the Trustee, the Collateral Manager and the Holders of the Preferred Interests. If such notice is received by the Trustee within such time period, a Majority of the Preferred Interests shall have 30 days from receipt of such notice to object to such successor collateral manager by delivery of notice of such objection to the Trustee, the Collateral Manager and the Holders of the Controlling Class. If no such notice of objection is received by the Trustee within such time period, such successor collateral manager proposed by a Majority of the Controlling Class will be appointed Collateral Manager.
(f) Notwithstanding the foregoing, if no successor Collateral Manager shall have been appointed by the Issuer or an instrument of acceptance by a successor Collateral Manager shall not have been delivered as provided in clause (g) below within 180 days following the date of resignation, termination or removal of the Collateral Manager, the Collateral Manager, a Majority of the Preferred Interests or a Majority of the Controlling Class may petition any court of competent jurisdiction for the appointment of a successor Collateral Manager without the approval of any Holders of Securities. If neither the Collateral Manager, a Majority of the Preferred Interests nor the Majority of the Controlling Class shall petition a court of competent jurisdiction within 45 days of having the right to do so, then any Holder of Securities of the Controlling Class may so petition.
(g) Any successor collateral manager shall be an institution that (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager, (ii) is legally qualified and has the capacity to act as collateral manager and assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) by its appointment will not cause or result in the Issuer or any portion of the Assets becoming required to register under the provisions of the Investment Company Act and (iv) has accepted its appointment in writing and has agreed to perform all duties of the Collateral Manager pursuant to this Agreement and any letter agreement that the Collateral Manager executed in connection with its duties hereunder.
(h) Upon the acceptance by a successor Collateral Manager of such appointment, all rights and obligations of the Collateral Manager under this Agreement shall terminate, except as provided in Sections 2(h)(i), 6, 7 (8(c), 10, 14(a), 15 and 33. Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1413, as applicable, and upon the acceptance by a successor Collateral Manager of such appointment, all authority and power of the Collateral Manager under this Agreement and the Indenture, whether with respect to the Assets or otherwise, shall automatically and without further action by any Person pass to and be vested in the successor Collateral Manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Carlyle GMS Finance, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and prior written notice to the Issuer, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Xxxxxxxxxx Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Capital Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Debt and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to Issuer, the Issuer) and the Collateral Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under the Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Collateral Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Xxxxxxxxxx Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Collateral Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Core Income Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the NoteholdersIndenture, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer who shall direct the Trustee to distribute deliver a copy of such notice to the Holders within five (5) Business Days of receiptHolders); provided that that, the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations. As a condition precedent to assuming the obligations of the Collateral Manager hereunder, any successor portfolio manager shall agree that, in the event the Collateral Manager determines at any time that it is necessary or advisable under the requirements of the U.S. Risk Retention Rules to transfer the U.S. Retention Interest (or cause the Retention Holder to transfer the U.S. Retention Interest) to the successor Collateral Manager, the successor Collateral Manager shall acquire such U.S. Retention Interest from the Collateral Manager (or the Retention Holder) at a price equal to an amount agreed to between the Collateral Manager and the successor Collateral Manager.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit copies of such notice of resignation or cause removal to the Trustee to transmit copies (which shall forward a copy of such notice to the Holders Holders) and each Rating Agency S&P (if then rating a Class of Secured Notes) and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act Investment Company Act, (iv) has been identified in a prior written notice provided to S&P and (v) with respect has not been objected to which by a Majority of the Global Rating Agency Condition has been satisfiedControlling Class.
(e) A If (i) a Majority of the Controlling Class will Subordinated Notes fails to nominate a successor Collateral Manager that meets the criteria set forth in clause within thirty (d30) above (other than subclause (v) thereof) following the days after initial notice of the resignation or removal of the Collateral Manager and such or (ii) a Majority of the Controlling Class objects to the proposed successor will be nominated by the Holders of the Subordinated Notes within ten (10) days after the date of the notice of such nomination, then a Majority of the Controlling Class shall, within thirty (30) days after the failure described in clause or (ii) of this sentence, as the case may be, nominate a successor collateral manager that meets the criteria set forth in Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor collateral manager is appointed within ninety (90) days (or, in the successor event of a change in applicable law or regulation which renders the performance by the Collateral Manager by of its duties under this Agreement or the Issuer; provided that Indenture to be a violation of such law or regulation, within thirty (30) days) following the Global Rating Agency Condition termination or resignation of the Collateral Manager, any of the resigning or removed Collateral Manager, a Majority of the Subordinated Notes and a Majority of the Controlling Class shall each have the right to petition a court of competent jurisdiction to appoint a successor collateral manager, in either such case whose appointment shall become effective after such successor has been satisfied with respect theretoaccepted its appointment and without the consent of any Holder or beneficial owner of any Notes.
(f) If no successor collateral manager has been appointed within 180 days after initial notice of the resignation or removal of the Collateral Manager, any Holder of Class A Notes with an Aggregate Outstanding Amount greater than $5 million as of the date of the initial notice of the resignation or removal of the Collateral Manager may petition any court of competent jurisdiction for the appointment of a successor collateral manager. Any such appointment by any court of competent jurisdiction shall not require the consent of, nor be subject to the disapproval of, the Issuer, any Holder or beneficial owner of any Notes or the outgoing Collateral Manager. The Issuer shall provide notice to the Holders and the Trustee (for forwarding to S&P) of the appointment of a successor collateral manager promptly after the effectiveness of such appointment.
(g) The successor Collateral Manager collateral manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b). Upon Section 8(a) and no compensation payable to such successor collateral manager shall be greater than as set forth in Section 8(a) without the later prior written consent of 100% of the expiration Holders or beneficial owners of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance each Class of its appointment hereunder Notes voting separately by the successor Collateral ManagerClass, all authority and power of the including Collateral Manager hereunderDebt, whether with respect and prior written notice to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action S&P (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation if then rating a Class of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.Secured
Appears in 1 contract
Samples: Collateral Management Agreement (Nuveen Churchill Private Capital Income Fund)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each the Rating Agency and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability ability, whether as an entity or by its principals or employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Subordinated Notes within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Subordinated Notes and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any holder or beneficial owner of any Note.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes voting separately by Class, including Collateral Manager Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g12(h), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC 3, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) such time as is mutually agreed by the final liquidation Borrower and the Collateral Manager and, during the term of the Assets and Credit Agreement, consented thereto in writing by the final distribution of the proceeds of such liquidation to the NoteholdersAdministrative Agent, (ii) the payment in full resignation of the Notes, and the satisfaction and discharge of the Indenture Collateral Manager in accordance with its terms Section 12(b) or (iii) the early Borrower’s execution of a replacement collateral management agreement with the Collateral Manager upon the occurrence of and in connection with the CLO Transaction. The Borrower shall promptly notify the Administrative Agent of any termination under this Section 12(a). Upon the effective date of the termination of this Agreement Agreement, the Collateral Manager shall, as soon as practicable, subject to any contractual obligations of confidentiality, use commercially reasonable efforts to (i) deliver to the Borrower all property and documents of the Borrower or otherwise relating to the Warehouse Assets then in accordance possession of the Collateral Manager and (ii) deliver to the Administrative Agent an accounting with Section 12(b)respect to the books and records delivered to the Borrower; provided, that the Collateral Manager may retain copies of the documents or property set forth in (c)i) and (ii) above in order to comply with any law, (d)rule, (e) regulation or (f) internal compliance policy; provided that with respect to any documentation or Section 14information subject to contractual obligations of confidentiality, the Collateral Manager shall use commercially reasonable efforts to cooperate with the Borrower and Administrative Agent and use commercially reasonable efforts to arrange for disclosure of such documentation or information to the Borrower or Administrative Agent, as applicable.
(b) Subject only to clause clauses (c) and (d) below, the Collateral Manager may resign, upon 60 30 days’ prior written notice to the Issuer Borrower, each Subordinated Lender and the Administrative Agent (or such shorter notice as is acceptable to the Issuer) Borrower, each Subordinated Lender and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receiptAdministrative Agent); provided that that, the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture Credit Agreement to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly Within 30 days after the Borrower has delivered written notice to each Subordinated Xxxxxx, the Administrative Agent and the Administrative Agent of any removal under Section 14 resignation or any resignation termination of the Collateral Manager that is to take place while any a Majority of the Notes are Outstanding, Subordinated Lenders with the Issuer consent of the Administrative Agent shall transmit or cause have the Trustee right to transmit copies of such appoint a replacement collateral manager by written notice to the Holders Borrower and the Administrative Agent. If no successor collateral manager is appointed within the time frame specified in the preceding sentence, the outgoing Collateral Manager (by written notice to the Borrower, the Administrative Agent and each Rating Agency and Subordinated Lender), with the consent of the Administrative Agent, shall have the right to appoint a successor Collateral Manager in accordance with collateral manager. Any successor collateral manager shall be any established entity that satisfied the procedures set forth in clause (e) below; provided that such successor Collateral Manager following criteria (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the IndentureCredit Agreement, and (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becomingBorrower to become, or require the pool of Assets assets owned by the Borrower to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedInvestment Company Act.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Managercollateral manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Warehouse Assets or otherwise, shall automatically and without action by any person or entity Person pass to and be vested in the successor Collateral Managercollateral manager. The Issuer, the Trustee Borrower and the successor Collateral Manager collateral manager shall take such action (or the Borrower shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gf) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hg) below.
(hg) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 8, 10, 12(g), 15, 17, 21, 22, 22 and 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 1412.
Appears in 1 contract
Samples: Warehouse Collateral Management Agreement (Apollo Debt Solutions BDC)
Term Termination. (a) This Until this Agreement is terminated in accordance with its terms, this Agreement shall commence as be in effect from the Effective Date until the third anniversary of the date first set forth above Effective Date (the "Initial Term") and shall continue in force until the first be automatically renewed for a one-year term each anniversary date thereafter (a "Renewal Term") unless at least two-thirds of the following occurs: Independent Directors or the holders of a majority of the outstanding shares of Common Stock (other than those shares held by members of the Company's senior management team and affiliates of the Manager) agree that (i) there has been unsatisfactory performance by the final liquidation of Manager that is materially detrimental to the Assets Company and the final distribution of the proceeds of such liquidation to the Noteholders, Subsidiaries or (ii) the payment in full compensation payable to the Manager hereunder is unfair; provided, that the Company shall not have the right to terminate this Agreement under clause (ii) above if the Manager agrees to continue to provide the services under this Agreement at a reduced fee that at least two-thirds of the Notes, and Independent Directors determines to be fair pursuant to the satisfaction and discharge procedure set forth below. If the Company elects not to renew this Agreement at the expiration of the Indenture in accordance with its terms Initial Term or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) belowany Renewal Term as set forth above, the Collateral Company shall deliver to the Manager may resign, upon 60 days’ prior written notice (the "Termination Notice") of the Company's intention not to renew this Agreement based upon the terms set forth in this Section 13(a) not less than 180 days prior to the Issuer expiration of the then existing term. If the Company so elects not to renew this Agreement, the Company shall designate the date (or the "Effective Termination Date"), not less than 180 days from the date of the notice, on which the Manager shall cease to provide services under this Agreement, and this Agreement shall terminate on such shorter notice as date; provided, however, that in the event that such Termination Notice is acceptable given in connection with a determination that the compensation payable to the Issuer) and Manager is unfair, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon renegotiate such compensation by delivering to the effectiveness Company, no fewer than 45 days prior to the prospective Effective Termination Date, written notice (any such notice, a "Notice of any material change in applicable law or regulations which renders Proposal to Negotiate") of its intention to renegotiate its compensation under this Agreement. Thereupon, the performance Company (represented by the Collateral Manager of its duties hereunder or under Independent Directors) and the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of endeavor to negotiate in good faith the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice revised compensation payable to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuerthis Agreement; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager and at least two-thirds of the Independent Directors agree to the terms of the revised compensation to be payable to the Manager within 45 days following the receipt of the Notice of Proposal to Negotiate, the Termination Notice shall be entitled deemed of no force and effect and this Agreement shall continue in full force and effect on the terms stated in this Agreement, except that the compensation payable to the Manager hereunder shall be the revised compensation then agreed upon by the parties to this Agreement. The Company and the Manager agree to execute and deliver an amendment to this Agreement setting forth such Collateral Management Fee revised compensation promptly upon reaching an agreement regarding same. In the event that the Company and the Manager are unable to agree to the terms of the revised compensation to be payable to the Manager during such 45-day period, this Agreement shall terminate, such termination to be effective on the date which is the later of (A) 10 days following the end of such 45-day period and (B) the Effective Termination Date originally set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such successionTermination Notice.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the NotesDebt, and the satisfaction and discharge of the Indenture in accordance with its respective terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fd) or Section 1414 hereof (subject, in all cases, to Section 12(f)).
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to which the Issuer agrees) to the Issuer) , the Collateral Trustee and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations regulation which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such any law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to this Agreement Manager, for cause or without cause, shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Debt is Outstanding, the Issuer shall transmit at the direction of a Majority of the Subordinated Notes (or cause in the Trustee to transmit copies case of such removal for Cause of the Collateral Manager, if all of the Subordinated Notes consist of Collateral Manager Debt, a Majority of the lowest Priority Class of Debt that is not comprised entirely of Collateral Manager Debt) will, with notice to the Holders and each Rating Agency and shall (with a copy to the outgoing Collateral Manager), appoint as a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided replacement collateral manager an institution that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume act as Collateral Manager hereunder, as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in either of the Issuer Issuers becoming, or BUSINESS.31747005.5 require the pool of Assets collateral to be registered as, an investment company under the 1940 Investment Company Act and (viv) with respect to which the Global Rating Agency Condition has not been satisfied.
(e) A disapproved by a Majority of the Controlling Class will nominate within 15 days after notice of such appointment. No compensation payable to such a successor Collateral Manager from payments on the Assets shall be greater than that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of permitted to the Collateral Manager and such proposed successor will be appointed under this Agreement without the successor Collateral Manager prior written consent of a Majority of each Class of Debt, voting separately by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b)Class. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Managerherein, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Managerinstitution upon the acceptance by such institution of its appointment hereunder. The Issuer, the Trustee Collateral Trustee, the outgoing Collateral Manager and the successor Collateral Manager collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture as shall be necessary to effect any such succession. If no successor collateral manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of any law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, the Collateral Manager shall have the right to petition a court of competent jurisdiction to appoint a successor collateral manager, in either such case whose appointment shall become effective after such successor has accepted its appointment, notice of such appointment is provided to the Rating Agency and without the consent of any Holder.
(ge) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hg) below.
(hf) If Barings Private Credit Corporation resigns or is removed as Xxxxxxxxxx Manager hereunder, within 30 days after the date on which a successor collateral manager has assumed the duties and obligations of the Collateral Manager hereunder, the Issuer will, and will cause the Co-Issuer to, change its name to remove any reference to “Barings.”
(g) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder8(d), 8 (10, 21, 22, 23 and 28, insofar as they relate to the period ending with respect to any accrued the termination of this Agreement, and unpaid Collateral Management Fees) 10Sections 8(e), 12(f), 12(g), 15, 17, 21, 22, 23 24 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Barings Private Credit Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Notes and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and to the Issuer, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to the Holders within five (5) Business Days of receipteach Holder), and each Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under the Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and each Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the Co-Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer or the Co-Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to each Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Capital Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and , the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net basis.
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Xxxxxxxxxx Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon the later of the expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Technology Income Corp.)
Term Termination. (a) This Until this Agreement is terminated in accordance with its terms, this Agreement shall commence as be in effect until three (3) years from the date of completion of the date first set forth above Initial Public Offering (the "Initial Term") and shall continue in force until be automatically renewed for a one-year term on each anniversary date thereafter (a "Renewal Term") unless Nordic GP, as approved by the first affirmative vote of at least two-thirds of the following occurs: Independent Directors, determines that (i) there has been unsatisfactory performance by the final liquidation of the Assets and the final distribution of the proceeds of such liquidation Manager that is materially detrimental to the Noteholders, Company or (ii) the payment in full compensation payable to the Manager hereunder is not fair; provided that Nordic OP shall not have the right to terminate this Agreement under clause (ii) above if the Manager agrees to continue to provide the services under this Agreement at a that Nordic GP as approved by at least two-thirds of the NotesIndependent Directors, and determines to be fair pursuant to the satisfaction and discharge procedure set forth below. If Nordic GP determines under the preceding sentence not to renew this Agreement upon expiration of the Indenture in accordance with its terms Initial Term or any Renewal Term (iiithe "Effective Termination Date") the early termination of this Agreement in accordance with Section 12(b), under clause (c), (d), (ei) or (fii) of the first sentence of this paragraph, Nordic GP shall provide a notice of non-renewal ("Termination Notice") which shall be given at least 180 days prior to the Effective Termination Date and shall (i) specify the reason for nonrenewal in the Termination Notice (pursuant to either clause (i) or Section 14.
(bii) Subject only of the first sentence of this paragraph) and (ii) pay the Manager the Termination Fee on or before the last day of the Initial Term or Renewal Term; provided, however, that if such Termination Notice is given in connection with a determination that the compensation payable to clause (c) belowthe Manager is unfair, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately renegotiate such compensation by delivering to Nordic GP and Nordic OP, no fewer than 60 days prior to the prospective Effective Termination Date, written notice (any such notice, a "Notice of Proposal to Negotiate") of its intention to renegotiate its compensation under this Agreement. Upon receipt by Nordic GP and Nordic OP of a Notice of Proposal to Negotiate, Nordic OP (represented by Nordic GP, acting with the approval of at least two-thirds of the Independent Directors), and the Manager and Nordic OP (as so represented) shall endeavor to negotiate in good faith the revised compensation to be payable to the Manager under this Agreement. Provided that the Manager and Nordic GP with the approval of at least two-thirds of the Independent Directors, agree to the terms of the revised compensation to be payable to the Manager within 60 days following the receipt of the Notice of Proposal to Negotiate, the Termination Notice shall be deemed of no force and effect and this Agreement shall continue in full force and effect on the terms stated in this Agreement, except that the compensation payable to the Manager shall be the revised compensation then agreed upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral parties to this Agreement. Nordic GP, Nordic OP and the Manager agree to execute and deliver an amendment to this Agreement setting forth such revised compensation promptly upon reaching an agreement regarding the same. If Nordic OP (represented by Nordic GP, acting with the approval of its duties hereunder or under at least two-thirds of the Indenture Independent Directors) and the Manager are unable to agree to the terms of the revised compensation to be a violation payable to the Manager during such 60-day period, this Agreement shall terminate, such termination to be effective on the date that is the later of (A) 10 days following the end of such law 60-day period and (B) the Effective Termination Date originally set forth in the Termination Notice.
(b) In recognition of the upfront effort required by the Manager to structure Nordic OP and its Subsidiaries and the commitment of resources by the Manager, in the event that this Agreement is terminated in accordance with the provisions of Section 13(a) or regulation.Section 14(b) of this Agreement, Nordic OP shall pay or cause to be paid to the Manager, on the date on which such termination is effective, a termination fee (the "Termination Fee") equal to three times the average annual Management Fee earned by the Manager during the 24-month period prior to such termination, calculated as of the end of the most recently completed fiscal quarter. The obligation of Nordic OP to pay the Termination Fee shall survive the termination of this Agreement. Additionally, if this Agreement is terminated under circumstances in which Nordic OP is obligated to pay the Termination Fee to the Manager, Nordic OP shall repurchase, concurrently with such termination, the Special Shares for an amount equal to three times the average annual amount of the Incentive Distribution paid or payable in respect of the Special Shares during the 24-month period immediately preceding such termination, calculated as of the end of the most recently completed fiscal quarter before the date of termination
(c) No resignation or removal of the Collateral Manager pursuant later than 180 days prior to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable Initial Term or Renewal Term, the Manager may deliver written notice periods with respect to termination specified in this Section 12 or in Section 14 Nordic GP and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power Nordic OP informing them of the Collateral Manager hereunderManager's intention to decline to renew this Agreement, whether with respect whereupon this Agreement shall not be renewed and extended and this Agreement shall terminate effective on the anniversary date of this Agreement next following the delivery of such notice. Nordic OP shall not be required to pay the Termination Fee to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in Manager if the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of terminates this Agreement pursuant to this Section 12 or Section 1413(c).
Appears in 1 contract
Term Termination. (a) This Until this Agreement is terminated in accordance with its terms, this Agreement shall commence as be in effect until , 2011 (the “Initial Term”) and shall be automatically renewed for a one-year term each anniversary date thereafter (a “Renewal Term”) unless at least two-thirds of the date first set forth above and shall continue in force until Independent Directors or the first holders of a majority of the following occurs: outstanding shares of common stock (other than those shares held by MFA or its affiliates) agree that (i) there has been unsatisfactory performance by the final liquidation of Manager that is materially detrimental to the Assets Company and the final distribution of the proceeds of such liquidation to the Noteholders, Subsidiaries or (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice compensation payable to the Issuer (or such shorter notice as Manager hereunder is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)unfair; provided that the Collateral Company shall not have the right to terminate this Agreement under clause (ii) above if the Manager agrees to continue to provide the services under this Agreement at a reduced fee that at least two-thirds of the Independent Directors determines to be fair pursuant to the procedure set forth below. If the Company elects not to renew this Agreement at the expiration of the Initial Term or any Renewal Term as set forth above, the Company shall deliver to the Manager prior written notice (the “Termination Notice”) of the Company’s intention not to renew this Agreement based upon the terms set forth in this Section 13(a) not less than 180 days prior to the expiration of the then existing term. If the Company so elects not to renew this Agreement, the Company shall designate the date (the “Effective Termination Date”), not less than 180 days from the date of the notice, on which the Manager shall cease to provide services under this Agreement, and this Agreement shall terminate on such date; provided, however, that in the event that such Termination Notice is given in connection with a determination that the compensation payable to the Manager is unfair, the Manager shall have the right to resign immediately upon renegotiate such compensation by delivering to the effectiveness Company, no fewer than 45 days prior to the prospective Effective Termination Date, written notice (any such notice, a “Notice of any material change in applicable law or regulations which renders Proposal to Negotiate”) of its intention to renegotiate its compensation under this Agreement. Thereupon, the performance Company (represented by the Collateral Independent Directors) and the Manager shall endeavor to negotiate in good faith the revised compensation payable to the Manager under this Agreement. Provided that the Manager and at least two-thirds of its duties hereunder or under the Indenture Independent Directors agree to the terms of the revised compensation to be a violation payable to the Manager within 45 days following the receipt of the Notice of Proposal to Negotiate, the Termination Notice shall be deemed of no force and effect and this Agreement shall continue in full force and effect on the terms stated in this Agreement, except that the compensation payable to the Manager hereunder shall be the revised compensation then agreed upon by the parties to this Agreement. The Company and the Manager agree to execute and deliver an amendment to this Agreement setting forth such revised compensation promptly upon reaching an agreement regarding same. In the event that the Company and the Manager are unable to agree to the terms of the revised compensation to be payable to the Manager during such 45-day period, this Agreement shall terminate, such termination to be effective on the date which is the later of (A) 10 days following the end of such law or regulation45-day period and (B) the Effective Termination Date originally set forth in the Termination Notice.
(b) In recognition of the level of the upfront effort required by the Manager to structure and acquire the assets of the Company and the Subsidiaries and the commitment of resources by the Manager, in the event that this Agreement is terminated in accordance with the provisions of Section 13(a) of this Agreement, the Company shall pay to the Manager, on the date on which such termination is effective, a termination fee (the “Termination Fee”) equal to three times the sum of the average annual Base Management Fee earned by the Manager during the 24-month period immediately preceding the date of such termination, calculated as of the end of the most recently completed fiscal quarter prior to the date of termination. The obligation of the Company to pay the Termination Fee shall survive the termination of this Agreement.
(c) No resignation later than 180 days prior to the anniversary date of this Agreement of any year during the Initial Term or removal Renewal Term, the Manager may deliver written notice to the Company informing it of the Collateral Manager’s intention to decline to renew this Agreement, whereupon this Agreement shall not be renewed and extended and this Agreement shall terminate effective on the anniversary date of this Agreement next following the delivery of such notice. The Company is not required to pay to the Manager the Termination Fee if the Manager terminates this Agreement pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”Section 13(c).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 1213, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder9, 10, 13(b), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g15(b), 15and 16 of this Agreement. In addition, 17, 21, 22, 23 Sections 11 and 25 21 of this Agreement shall survive any termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 1 contract
Samples: Management Agreement (MFResidential Investments, Inc.)
Term Termination. (a) This Except as otherwise provided in this Section XIV, the licenses granted pursuant to this Agreement shall commence as of the date first set forth above and shall continue remain in force until 30 September 2005. Upon the first of the following occursearlier to occur of: (i) Licensor notifies Licensee in writing that it will no longer offer for sale complete Light Engines (directly or through its contract manufacturer) (the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders"LE Notice"), or (ii) the payment in full of the NotesLicensor is not offering for sale complete Light Engines (directly or through its contract manufacturer) prior to 30 September 2005, and the satisfaction provided that (x) this Agreement has not previously terminated, and discharge of the Indenture (y) that Licensee is not then in accordance with its terms or (iii) the early termination material default of this Agreement in accordance with Section 12(b(such earlier event hereinafter referred to as an "Early Trigger"), Licensee shall have the right, at its option and exercisable by Licensee on written notice to Licensor (c1) within fifteen (15) days of receipt of the LE Notice with respect to an Early Trigger pursuant to Section XIV(a)(i) above, or (2) on or prior to 30 September 2005 with respect to an Early Trigger pursuant to Section XIV(a)(ii) above, to (A) extend this Agreement to 30 June 2006, subject to termination pursuant to Sections XIV(b), XIV(c) or XIV(d) below (dsuch extended license hereinafter referred to as, the "Extended License"), and/or (eB) extend this Agreement in perpetuity, subject to termination pursuant to Sections XIV(b), XIV(c) or XIV(d) below (f) or Section 14such extended license hereinafter referred to as, the "Perpetual License").
(b) Subject only In the event that Licensee exercises its rights to clause (c) belowthe Extended License or the Perpetual License and Licensee is making the Licensed Products directly without a third-party contractor or assembler, the Collateral Manager may resign, upon 60 days’ prior written notice Royalty Rate shall remain as set forth in this Agreement. In the event that Licensee exercises its rights to the Issuer (Perpetual License and Licensee has the Licensed Products made by Fabrinet or such shorter notice another authorized assembler as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change set forth in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to Section II above, this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed modified and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager amended to: (i) has demonstrated an ability delete the terms "to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereundermake" in Section II(ii) above, (ii) is legally qualified eliminate the 15% limitation on the amount of Light Engines that Licensee can have manufactured by a third party authorized assembler; and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed modify the royalty during such extension period to coordinate with be an amount equal to the replaced Collateral Manager regarding communications with the Rating Agencies, greater of: (ivx) does not cause or result in the Issuer becoming$50 per unit, or require (y) 5% of the pool Light Engine Revenue derived by Licensee from the sale of Assets each television unit incorporating a Light Engine (where "Light Engine Revenue" shall mean that portion of the total revenue of Licensee from the sale of a television unit equal to that percentage of the total cost of goods sold of such television unit that is attributable to the total completed Light Engine). In the event the Royalty Rate is modified pursuant to Section XIV(b)(ii) above, then every six months following the effective date of the Perpetual License, the parties shall negotiate in good faith a fixed dollar amount for the Royalty Rate that they deem to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled equal to such Collateral Management Fee set forth in Sections 8(b)modified Royalty Rate. Upon On or after 30 September 2007 the later of Perpetual License shall terminate immediately following any calendar month during the expiration of extension period for which Licensee shall pay Licensor the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and royalty on less than 1,000 Light Engine units per month as determined on a rolling twelve month basis. In the acceptance of its appointment hereunder by event Licensee exercises the successor Collateral Manager, all authority and power of option for the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated Extended License and/or Perpetual License pursuant to this Section 12XIV(b), such termination election shall be without serve as a full release of all claims against Licensor for any further liability acts or obligation of either party omissions by Licensor for periods prior to the other, except as provided in clause (h) below1 October 2005.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the NotesDebt, and the satisfaction and discharge of the Indenture in accordance with its respective terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fd) or Section 1414 hereof (subject, in all cases, to Section 12(f)).
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to which the Issuer agrees) to the Issuer) , the Collateral Trustee and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations regulation which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such any law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to this Agreement Manager, for cause or without cause, shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Debt is Outstanding, the Issuer shall transmit at the direction of a Majority of the Subordinated Notes (or cause in the Trustee to transmit copies case of such removal for Cause of the Collateral Manager, if all of the Subordinated Notes consist of Collateral Manager Debt, a Majority of the lowest Priority Class of Debt that is not comprised entirely of Collateral Manager Debt) will, with notice to the Holders and each Rating Agency and shall (with a copy to the outgoing Collateral Manager), appoint as a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided replacement collateral manager an institution that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume act as Collateral Manager hereunder, as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in either of the Issuer Issuers becoming, or require the pool of Assets collateral to be registered as, an investment company under the 1940 Investment Company Act and (viv) with respect to which the Global Rating Agency Condition has not been satisfied.
(e) A disapproved by a Majority of the Controlling Class will nominate within 15 days after notice of such appointment. No compensation payable to such a successor Collateral Manager from payments on the Assets shall be greater than that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of permitted to the Collateral Manager and such proposed successor will be appointed under this Agreement without the successor Collateral Manager prior written consent of a Majority of each Class of Debt, voting separately by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b)Class. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Managerherein, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Managerinstitution upon the acceptance by such institution of its appointment hereunder. The Issuer, the Trustee Collateral Trustee, the outgoing Collateral Manager and the successor Collateral Manager collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture as shall be necessary to effect any such succession. If no successor collateral manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of any law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, the Collateral Manager shall have the right to petition a court of competent jurisdiction to appoint a successor collateral manager, in either such case whose appointment shall become effective after such successor has accepted its appointment, notice of such appointment is provided to the Rating Agency and without the consent of any Holder.
(ge) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hg) below.
(hf) If Barings Private Credit Corporation resigns or is removed as Xxxxxxxxxx Manager hereunder, within 30 days after the date on which a successor collateral manager has assumed the duties and obligations of the Collateral Manager hereunder, the Issuer will, and will cause the Co-Issuer to, change its name to remove any reference to “Barings.”
(g) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder8(d), 8 (10, 21, 22, 23 and 28, insofar as they relate to the period ending with respect to any accrued the termination of this Agreement, and unpaid Collateral Management Fees) 10Sections 8(e), 12(f), 12(g), 15, 17, 21, 22, 23 24 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Barings Private Credit Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Notes and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and to the Issuer, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under the Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 2(g), 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the Co-Issuer or the pool of Assets to become required to register under the Investment Company Act and (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer or the Co-Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Capital Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its the respective terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders, and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders of the Notes) and each the Rating Agency Agencies (provided that in the case of Fitch, only for so long as any Class A-1 Notes remain outstanding) and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability ability, whether as an entity or by its principals or employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Subordinated Notes within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Subordinated Notes and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any holder or beneficial owner of any Notes.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes voting separately by Class, including Collateral Manager Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g12(h), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital Private Credit Fund)
Term Termination. (a) This Agreement Lease and the parties' respective rights, obligations and liabilities hereunder shall commence as be effective from the commencement date. The Lessor shall deliver free and vacant possession of the Demised Premises to the Lessee on the date first set forth above of execution of this lease deed and the Lessee shall continue in force until take possession subject to the first of the following occurs: Lessor providing:
(i) the final liquidation Report on Title in respect of the Assets Demised Premises showing free and clear title to the final distribution building housing the Demised Premises and independent verification of the proceeds of such liquidation to the Noteholders, same.
(ii) Provisional Occupancy Certificate" of the South Wing of the building premises comprising of the Ground Floor, First Floor and Second Floor to be issued by the Municipal Corporation of Hyderabad (MCH) or any other competent authority in this respect on or before November 15th 2003. In the event the Lessor is unable to provide the Occupancy Certificate on or before November 15th 2003, the Lessor shall have the right to suspend the payment in full of the Notes, and Rent until the satisfaction and discharge production of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14Provisional Occupancy Certificate.
(b) Subject only to clause The term of this Lease shall be initially for a period of 18(EIGHTEEN) MONTHS commencing from the Commencement Date and ending at 11:59 p.m. on the last day of the eighteenth (c18th) below, month of the Collateral Manager may resign, upon 60 days’ prior written notice to Lease (the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt"Expiration Date"); provided that the Collateral Manager . The Lessee shall have the right sole option to resign immediately upon renew the effectiveness lease for further period(s) on the same terms and conditions as mentioned herein subject to an increase in lease rent as mentioned in Section 4 below. However, in the event, the Lessee continues to remain in possession of any material change the Demised Premises only for 3 (three) months after the expiry of the initial period of 18 (eighteen) months, the increase in Lease Rent will not be applicable. The enhanced Lease Rent will be applicable law or regulations which renders from the performance by 19(nineteenth) month retrospectively in the Collateral Manager event the period of its duties hereunder or under Lease extends beyond 21(twenty one ) months from the Indenture to be a violation of such law or regulationcommencement date.
(c) No resignation or removal In case, the Lessee intends to renew the lease for further period's beyond the initial 18 (eighteen) months, it shall do so by issuing a written notice of such intention to the Lessor at least 3 (three) months prior to the expiry of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Lease.
(d) Promptly after notice In the event the parties are not desirous of any removal under Section 14 or any resignation seeking extension of the Collateral Manager that is to take place while any Lease beyond the initial lease term then the Lessee shall hand over the possession of the Notes are OutstandingDemised Premises in good condition subject to normal wear and tear, save and including the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Lessee's Fixtures detailed in Exhibit F and each Rating Agency on terms and shall appoint a successor Collateral Manager conditions enumerated in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14./s/ Xxxxxxx Xxxxx
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Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets Collateral and the final distribution of the proceeds of such liquidation to the Noteholders, Holders; or (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with subsection (b) of this Section 12(b), (c), (d), (e) or (f) 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (Issuer; provided, however, that no such termination or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed agreed in writing to assume all of the Collateral Manager’s duties and obligations pursuant to this Agreement and such assumption has become effective.
(c) This Agreement shall be automatically terminated in writing (the event that the Administrator, in consultation with the Board of Directors and the Collateral Manager, determines in good faith that the Issuer or the Co-Issuer or the pool of Collateral has become required to register as an “Instrument investment company under the provisions of Acceptance”)the Investment Company Act by virtue of any action taken by the Collateral Manager, and the Issuer notifies the Collateral Manager thereof.
(d) Promptly after notice If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 10, 15 and 31 of this Agreement, which provisions shall survive the termination of this Agreement.
(e) Upon any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes Securities are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies Issuer, acting through its Board of such notice to the Holders and each Rating Agency and Directors, shall appoint a as successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager an institution which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume act as Collateral Manager hereunder, as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, Indenture and (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does shall not cause or result in the Issuer becoming, or require the Co-Issuer or the pool of Assets Collateral to be registered as, become required to register as an “investment company company” under the 1940 Act and (v) with respect to which provisions of the Global Rating Agency Condition Investment Company Act. No such termination or removal shall be effective until a successor Collateral Manager has been satisfied.
(e) A approved by Holders of a Majority of the Controlling Class will nominate Outstanding after the issuance by the Issuer of a notice naming and describing the qualifications of the successor Collateral Manager that meets to the criteria set forth in clause (d) above (other than subclause (v) thereof) following Holders of the Securities and the appointment has become effective. Such successor Collateral Manager must be ready and able to assume the duties of the Collateral Manager within 40 days after the date of such notice of the resignation or removal of the Collateral Manager. If no successor Collateral Manager and such proposed shall have been appointed or an instrument of acceptance by a successor will be appointed Collateral Manager shall not have been delivered to the Collateral Manager (a) within 30 days after designation of the successor Collateral Manager by the Issuer; provided that Issuer and the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The issuance of notice regarding the successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later Holders of the expiration Securities, or (b) within 50 days after the date of notice of resignation or removal of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power the resigning or removed Collateral Manager may petition any court of competent jurisdiction for the appointment of a successor Collateral Manager without the approval of the Holders of the Notes. No compensation payable to any successor Collateral Manager hereunder, whether with respect to from payments on the Assets or otherwise, Collateral shall automatically and without action be greater than that permitted by any person or entity pass to and be vested in the successor Collateral ManagerIndenture. The Issuer, the Trustee Trustee, the Collateral Manager and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effect effectuate any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (KKR Financial Corp)
Term Termination. (a) This The term (the "Term") of this Agreement shall commence as of the date first set forth above this Agreement is approved by a Bankruptcy Court having jurisdiction over the Company (the "Effective Date") and shall continue in force until the first earlier of the following occurs: (i) Closing under the final liquidation Letter of Intent or the termination of the Assets and the final distribution Letter of the proceeds of such liquidation Intent pursuant to the Noteholdersits terms, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture unless this Agreement is otherwise terminated in accordance with its the terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14and conditions hereof.
(b) Subject only This Agreement may be terminated as follows: (i) by the Company at any time if Manager shall have materially breached, or shall be in material default of, any of its agreements, obligations or other undertakings hereunder, and such breach or default shall have continued, in the reasonable determination of the Company, for more than twenty (20) calendar days following written notice thereof from the Company to clause Manager; (cii) below, the Collateral Manager may resign, by either party upon 60 days’ not less than ten (10) days prior written notice to from the Issuer other party; (or such shorter notice as is acceptable to the Issueriii) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness termination or expiration of any material change in applicable law the Letter of Intent or regulations which renders upon the performance termination of the DIP financing to be provided by Manager to the Company or (iv) by the Collateral Company if Manager fails to close on the sale contemplated by the Letter of its duties hereunder or under the Indenture to be a violation of such law or regulationIntent by April 30, 2001.
(c) No resignation If the Company terminates this Agreement for any reason other than pursuant to Section 2(b)(i) or removal 2(b)(iv) of this Agreement, the Company shall pay the Manager a fee equal to five percent (5%) of the Collateral Manager pursuant to this Agreement shall be effective until product of two (2) times the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of Company's average monthly gross revenues during the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)six months preceding August 31, 2000.
(d) Promptly after notice Upon any termination of any removal under Section 14 Manager's position during the Term hereof or any resignation of otherwise, Manager shall do the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager following:
(i) has demonstrated an ability Immediately pay over to professionally the Company all monies collected and competently perform duties similar held by Manager for the account of the Company pursuant to those imposed upon the Collateral Manager hereunder, terms and conditions of this Agreement;
(ii) is legally qualified and has Deliver to the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate Company a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether full accounting with respect to the Assets or otherwiseBusiness in accordance with Section 4 hereof, shall automatically and without action by any person or entity pass covering the period following the date of the last accounting furnished to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.Company; and
(giii) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party Deliver to the otherCompany all books, except as provided in clause (h) below.
(h) Sections 6records, 7 (agreements, papers and other property and documents of the Company with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination the Business then in the custody of this Agreement pursuant to this Section 12 or Section 14Manager.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as take effect on April 1, 2010 (the “Effective Date”), and shall terminate on the one-year anniversary of the date first set forth above Effective Date. This Agreement and its related terms may be extended upon mutual consent by both parties.
10.1. This Agreement may be terminated at any time during the term hereof by notice in writing to the other party in which case termination shall continue in force until the first of the following occurs: be effective fifteen (i15) the final liquidation of the Assets and the final distribution of the proceeds calendar days after receipt of such liquidation notice by the other party or at such later date as may be mutually agreed to by the Noteholdersparties.
10.2. This Agreement may be terminated immediately by Hoku if Consultant violates Hoku’s Ixxxxxx Xxxxxxx Policy attached hereto as Exhibit A, (ii) the payment in full of the Notesor Hoku’s Policy Regarding Stock Trading by Directors, Officers and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early Other Designated Insiders attached hereto as Exhibit B.
10.3. It is expressly agreed that upon termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties rights and obligations of the Collateral Manager parties hereunder shall cease and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) terminate except for responsibilities with respect to confidentiality, non-solicitation, the payment of Consultant’s pre-approved expenses. It is further acknowledged and understood by Consultant that the vesting of Consultant’s Stock Awards shall cease immediately upon the expiration or earlier termination of this Agreement. Notwithstanding anything to the contrary herein, following the expiration or termination of this Agreement, Consultant shall not trade in the securities of Hoku until any Confidential Information which the Global Rating Agency Condition has been satisfiedis material is publicly disseminated by Hoku or otherwise becomes clearly and objectively immaterial to an investor’s decision to trade in such securities.
(e) A Majority of 10.4. Notwithstanding the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Managerforegoing, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If event that this Agreement is terminated by the Company for any reason other than Consultant’s material breach of any material term of this Agreement, or pursuant to this Section 1210.2 above, then Consultant shall immediately upon such termination shall be without any further liability or obligation receive all compensation that would have been due pursuant to Section 4 above through the end of either party to the otherone-year term of this Agreement, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination all unvested restricted stock awards that otherwise would have vested during the one-year term of this Agreement pursuant to this Section 12 or Section 14.shall immediately vest. Hoku Initials /s/SP 3/1/2010 Consultant Initials /s/DS 3/1/2010
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Term Termination. (a) This The term of this Agreement shall commence commences on the Effective Date and continues for a period of three (3) years, unless and until earlier terminated as provided under this Agreement (the "Initial Term"). UPON EXPIRATION OF THE INITIAL TERM, THIS AGREEMENT AUTOMATICALLY RENEWS FOR ADDITIONAL SUCCESSIVE ONE (1) YEAR TERMS UNLESS AND UNTIL EITHER PARTY PROVIDES WRITTEN NOTICE OF NONRENEWAL TO THE OTHER PARTY AT THE ADDRESS ABOVE OR IN THE ORDER FORM AT LEAST SIXTY (60) DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM, OR UNLESS AND UNTIL EARLIER TERMINATED AS PROVIDED UNDER THIS AGREEMENT (EACH A "RENEWAL TERM" AND TOGETHER WITH THE INITIAL TERM, THE "TERM"). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement during each such Renewal Term are the date first set forth above and shall continue same as the terms in force until effect immediately prior to such renewal, subject to any change in Prices pursuant to Section 3. In the first event either Party provides timely notice of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation its intent not to the Noteholdersrenew this Agreement, (ii) the payment in full of the Notesthen, and the satisfaction and discharge of the Indenture unless earlier terminated in accordance with its terms or (iii) the early termination of terms, this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14terminates on the expiration of the then-current Term.
(b) Subject only In addition to clause (c) belowany remedies that may be provided under this Agreement, the Collateral Manager Netradyne may resign, terminate this Agreement with immediate effect upon 60 days’ prior written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Customer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with the Issuer material terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or such shorter notice as is acceptable commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy benefit of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulationcreditors.
(c) No resignation Upon any expiration or removal termination of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the otherAgreement, except as expressly otherwise provided in clause this Agreement: (hA) below.
all rights, licenses, consents and authorizations granted by Netradyne hereunder will immediately terminate; (hB) Sections 6Customer shall immediately cease all use of any Services, 7 Firmware and Netradyne Materials; (with respect C) all accrued rights to any indemnity or insurance provided thereunder)payments shall survive, 8 (with respect and Customer shall promptly pay in full to any accrued Netradyne all outstanding and unpaid Collateral Management Feesfees; and (D) 10, 12(g), 15, 17, 21, 22, 23 Netradyne may disable all Customer and 25 shall survive any termination of this Agreement pursuant Authorized User access to this Section 12 or Section 14the Driveri Services and Netradyne Materials.
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Term Termination. (a) A. This Supplemental Agreement shall commence as of the date first set forth above shown above, and shall continue for an indefinite period until terminated in the manner prescribed in this paragraph. Notwithstanding any termination or expiration of this Supplemental Agreement, any and all warranties, representations or agreements to hold harmless shall survive such termination and remain in full force until the first of the following occurs: and effect.
B. Any party may terminate this Supplemental Agreement without cause by (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 giving 30 days’ prior written notice to the Issuer others of such termination and (or such shorter notice as is acceptable to the Issuerii) and the Trustee (and the Issuer shall direct the Trustee to distribute giving a copy of such notice thereof to ASCF. Notices to ASCF shall be addressed to ASCF at: ASC Finance, LLC - P. O. Xxx 0000 Xxxxxxxx Xxxx, Xxxxxxxx 00000. Notice must be mailed to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change address designated in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Supplemental Agreement and shall be effective until 30 days after the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)delivery or mailing, whichever is earliest.
(d) Promptly after C. This Supplemental Agreement may, at the option of Administrator, terminate immediately and without notice for cause upon the occurrence of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstandingfollowing events:
i. Dealer’s assignment or attempted assignment of this Supplemental Agreement or any portion of any interest in or any payment due under the “no interest” Payment Plan Term Agreement without the expressed prior written consent of ASCF and Administrator; Specimen
ii. The filing by Dealer of a voluntary petition in bankruptcy or execution by Dealer of an assignment for the benefit of creditors;
iii. The filing of a petition to have Dealer declared bankrupt, which is not vacated within 30 days;
iv. The material breach of any provision contained within this supplemental agreement;
v. Dealer’s acts of fraud, defalcation, dishonesty or intentional misrepresentation directed to Administrator, or ASCF, and their respective agents or employees; and
vi. Any violation of the Issuer shall transmit Dealer-Administrator Agreement.
D. Dealer hereby agrees to, at all times, indemnify and hold Administrator, ASCF, and their respective employees, agents, successors and assigns, free and harmless against any and all losses, judgments, defense costs or cause other liabilities arising out of any and all claims, actions, or demands, whether well founded or not, that may be asserted against all or any of them by any Purchaser, or any third party, regarding the Trustee “no interest” Payment Plan Terms Agreements and performance by Dealer thereunder, including but not limited to transmit copies of such notice any and all losses, judgments, defense costs or other liabilities for cancellation refunds, or for fraud, defalcation, dishonesty or intentional misrepresentation to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with extent the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability same are also directed to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunderAdministrator, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becomingASCF, or require the pool of Assets to be registered astheir agents, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedemployees, successors or assigns.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, Obligations and the satisfaction and discharge termination of the Indenture Credit Agreement in accordance with its terms or (iiiii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) below, This Agreement may not be terminated by the Collateral Manager may resignManager; provided, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under the Collateral Management Agreement or under the Indenture Credit Agreement to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Borrower and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) belowSections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(hd) Sections 6If (i) a Majority of the Equity Interests fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) the Administrative Agent does not approve the proposed successor nominated by the holders of a Majority of the Equity Interests within 10 days of the date of the notice of such nomination, 7 then the Administrative Agent shall, within 60 days of the failure described in clause (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in Section 13(b) (other than clause (v)). If a Majority of the Equity Interests approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Credit Agreement to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Equity Interests and the Administrative Agent shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Lender.
(e) The Borrower, the Administrative and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Credit Agreement applicable to the Collateral Manager, as shall be necessary to effectuate any such succession.
(f) In the event of removal of the Collateral Manager pursuant to this Agreement by the Borrower, the Borrower shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Borrower may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon the later of the expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Collateral Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.]
Appears in 1 contract
Samples: Warehouse Collateral Management Agreement (Owl Rock Core Income Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders of the Notes and the Holders of the Interests, (ii) the payment in full of the Notes, Notes and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement with respect to the Collateral Manager in accordance with Section 12(b12(c), (c), (d), (ein connection with the resignation of such Collateral Manager pursuant to Section 12(b) or (f) or in connection with the removal of such Collateral Manager pursuant to Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, resign upon 60 ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to or termination of this Agreement with respect to such Collateral Manager in connection with such resignation or removal shall be effective until the date as of which a successor Collateral Manager shall have been appointed in accordance with Section 12(d) or Section 12(e) and approved and has shall have accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and shall have assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each Rating Agency and shall appoint a successor Collateral Manager in accordance with Manager, at the procedures set forth in clause (e) below; provided that such successor Collateral Manager direction of a Majority of the Interests, which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfied.
satisfied and (ev) A has been approved by a Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoClass.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its respective terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fd) or Section 1414 hereof (subject, in all cases, to Section 12(f)).
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to which the Issuer agrees) to the Issuer) and , the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)each Applicable Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations regulation which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to this Agreement Manager, for cause or without cause, shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or Upon any resignation of the Collateral Manager or any removal under Section 14 that is to take place while any of the Notes are Outstanding, the Issuer shall transmit at the direction of a Majority of the Subordinated Notes (or cause in the Trustee to transmit copies case of such removal for Cause of the Collateral Manager, if all of the Subordinated Notes consist of Collateral Manager Notes, a Majority of the most senior Class of Notes that is not comprised entirely of Collateral Manager Notes) will, with notice to the Holders and each Applicable Rating Agency and shall (with a copy to the outgoing Collateral Manager), appoint as a successor replacement Collateral Manager in accordance with the procedures set forth in clause (e) below; provided an institution that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume act as Collateral Manager hereunder, as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.,
Appears in 1 contract
Samples: Collateral Management Agreement (Barings BDC, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds proceeds, if any, of such liquidation to the NoteholdersHolders of the Debt, (ii) the payment in full of the Notes, Secured Debt and the satisfaction and discharge of the Indenture and the Credit Agreement in accordance with its their terms or (iii) the early termination of this Agreement with respect to the Collateral Manager in accordance with Section 12(b12(c), (c), (d), (ein connection with the resignation of such Collateral Manager pursuant to Section 12(b) or (f) or in connection with the removal of such Collateral Manager pursuant to Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, resign upon 60 ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Collateral Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to or termination of this Agreement with respect to such Collateral Manager in connection with such resignation or removal shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) or Section 12(e) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Debt is Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Collateral Trustee (who shall forward a copy of such notice to the Holders) and each the Rating Agency and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Investment Company Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class (disregarding any Collateral Manager Notes).
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within thirty (30) days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will (disregarding any Collateral Manager Notes) does not approve the proposed successor nominated by the Holders of the Subordinated Notes within twenty (20) days of the date of the notice of such nomination, then a Majority of the Controlling Class (disregarding any Collateral Manager Notes) shall, within sixty (60) days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within ninety (d90) above days (other than subclause or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within thirty (v30) thereofdays) following the notice of the termination or resignation or removal of the Collateral Manager, any of the Collateral Manager, a Majority of the Subordinated Notes and a Majority of the Controlling Class (disregarding any Collateral Manager and such proposed successor will be appointed Notes) shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in any such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any Holder of any Debt.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(bSection 8(a) (except such portion of the Collateral Management Fee due and payable to the former Collateral Manager as set forth in Section 8(d)) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Secured Debt (in each case including Collateral Manager Notes) and of 100% of the holders of the Subordinated Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person Person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Collateral Trustee (acting at the direction of the Issuer) and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) In connection with any vote under this Agreement, in determining whether the Holders of the requisite Aggregate Outstanding Amount have given any request, demand, authorization, direction, notice, consent or waiver or made any proposal, if Collateral Manager Notes are disregarded and deemed not to be outstanding in connection with such vote and a Class of Secured Debt entitled to vote is comprised entirely of Collateral Manager Notes, then the most senior Class of Secured Debt that is not comprised entirely of Collateral Manager Notes shall be entitled to exercise the specified voting rights, disregarding any Collateral Manager Notes, in lieu of such other Class of Secured Debt.
(h) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hi) belowof this Section 12.
(hi) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (PennantPark Floating Rate Capital Ltd.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersNoteholders in accordance with the Indenture, (ii) the payment in full of the Secured Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency S&P and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that (i) such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) such successor Collateral Manager is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) such successor Collateral Manager has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating AgenciesS&P, (iv) such appointment does not cause or result in the Issuer or the Co-Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Investment Company Act, (v) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied with respect to such appointment and (vi) the appointment of which does not subject the Issuer to material adverse tax consequences.
(e) A Majority of the Controlling Class Subordinated Notes will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the within 30 days of initial notice of the resignation or removal of the Collateral Manager and if the Majority of the Controlling Class consents thereto, such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoto such appointment. If a Majority of the Subordinated Notes fails to nominate such a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or if a Majority of the Controlling Class does not consent thereto within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of initial notice of the resignation or removal of the Collateral Manager, nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof). If a Majority of the Subordinated Notes consents to such Controlling Class nominee, such nominee shall be appointed the successor Collateral Manager by the Issuer; provided that the Rating Agency Condition has been satisfied with respect to such appointment. If no successor Collateral Manager is appointed within 90 days with the consent thereto of a Majority of the Controlling Class (if nominated by a Majority of the Subordinated Notes) or the consent thereto of a Majority of the Subordinated Notes (if nominated by a Majority of the Controlling Class) (or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Issuer, the Collateral Manager, a Majority of the Subordinated Notes and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in any such case whose appointment shall become effective after such successor has accepted its appointment and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in an Instrument of Acceptance and without the consent of any Holder.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections Section 8(a) (and, to the extent such fees are not payable due to insufficient funds, the Collateral Management Fee due and owing to such successor Collateral Manager under Section 8(b)) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8 without the prior written consent of 100% of the Holders of each Class of Notes (voting separately by Class), including Collateral Manager Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management FeesFee) 10, 12(g), 15, 17, 21, 22, 23 and 25 21 through 27 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Garrison Capital Inc.)
Term Termination. (a) This Agreement shall commence as continue from the Effective Date hereof through February 28, 0000, and may be extended by the mutual written agreement of the date first set forth above and shall continue in force until the first of the following occurs: parties (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notesperiod, and any extensions thereof, the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b“Term”), (c), (d), (e) or (f) or Section 14.
(b) Subject only Notwithstanding anything in Section 17(a) to clause the contrary, this Agreement may be terminated as provided below:
(ci) belowEither party shall have the right to terminate this Agreement upon thirty (30) days prior written notice if the other party breaches this Agreement and, if susceptible of cure, fails to cure such breach within such 30-day period.
(ii) Retailer shall have the Collateral Manager may resignright to terminate this Agreement on not less than one hundred and twenty (120) days prior written notice if Bank elects not to increase the Credit Review Point pursuant to 5(b); provided, that in each case, any such notice of termination is given not more than one (1) year after Bank first advises Retailer of such election; provided, further, that as of the first date on which the aggregate outstanding indebtedness for all Accounts exceeds the Credit Review Point then in effect, this Agreement shall automatically and immediately terminate unless the parties shall have mutually agreed in writing to continue the Program.
(iii) Bank shall have the right to terminate the Agreement upon 60 fifteen (15) business days’ prior written notice to the Issuer (or such shorter notice Retailer if Retailer fails to maintain Tangible Net Worth as is acceptable defined in Schedule 14(b) as and to the Issuerextent required therein; provided, that if during such fifteen (15) and the Trustee (and the Issuer shall direct the Trustee business day period Retailer provides to distribute a copy Bank an Eligible Letter of such notice Credit in an amount equal to the Holders then-current Letter of Credit Amount (as defined in Appendix A), then, as to the specific reporting period within five which such default occurred, such default shall be deemed cured. The terms and conditions applicable to any such Letter of Credit are set forth on Appendix A attached hereto.
(5iv) Business Days of receipt); provided that [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Collateral Manager Commission].
(v) Bank shall have the right to resign immediately upon the effectiveness of any material terminate this Agreement if (x) applicable laws, regulations or other authority regulating Bank’s rate or fee structure change in applicable law a manner that is materially adverse to Bank or regulations which renders are preempted, or (y) Bank determines that the performance Program does not qualify (or if Bank reasonably determines that there is a material risk that the Program will not qualify) as an “open-end” credit facility under Regulation Z, 12 C.F.R. 226.2(a)(20).
(vi) [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission]
(vii) [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission];
A. [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission]
B. [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission] ** Confidential portions have been omitted pursuant to a request for confidential treatment by the Collateral Manager of its duties hereunder or Haverty Furniture Companies, Inc. pursuant to Rule 24B-2 under the Indenture Securities Exchange Act of 1934. [**Confidential portion has been omitted pursuant to be a violation request for confidential treatment and has been filed separately xxxx xxe Commission]
(viii) This Agreement shall automatically terminate if either party is the subject of such law bankruptcy, reorganization or regulationsimilar proceedings, elects to wind up or dissolve its operations, suspends its business, or has a liquidator, trustee or custodian appointed over its affairs.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager Notwithstanding termination by either party (i) has demonstrated an ability the terms of this Agreement will continue to professionally and competently perform duties similar apply to those imposed upon any Accounts established or transactions occurring, prior to the Collateral Manager hereundereffective termination date, (ii) is legally qualified the provisions of Sections 9 (Ownership of Accounts and has the capacity to assume all of the responsibilitiesInformation), duties 13 (Accountholder Information/Confidentiality and obligations of the Collateral Manager hereunder Data Security), 16 (Indemnification), 17 (Term/Termination) and under the applicable terms of the Indenture21 (Miscellaneous) will survive, and (iii) has agreed Bank may use Retailer’s name and marks for purposes of liquidating, transferring, selling, administering or collecting Accounts. Upon expiration or earlier termination of this Agreement, Bank will have the right, in addition to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company and without waiving any other rights it may have under the 1940 Act and (v) with respect terms of this Agreement or applicable law, to liquidate the Accounts in any lawful manner which may be expeditious or economically advantageous to Bank, including, without limitation, the Global Rating Agency Condition has been satisfied.
(e) A Majority issuance of a replacement or substitute credit card, transferring or selling the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled Accounts to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass soliciting the affected Accountholders to and be vested in transfer or convert balances to other credit vehicles. Bank may continue to provide the successor Collateral Manager. The Issuer, Program following the Trustee and the successor Collateral Manager shall take such action (expiration or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and termination hereof as shall be Bank reasonably deems necessary to effect any transfer, conversion or substitution of the Accounts; provided, that such succession.
continuation shall in no circumstances exceed six (g6) If this Agreement is terminated pursuant months. Bank may use the Retailer’s names and marks through the Final Liquidation Date (as defined in Section 17(b)) to this Section 12communicate with Accountholders in connection with any such liquidation, conversion, substitution or sale; provided, that such termination use shall be without limited to (x) the extent necessary to identify the Program as the subject of any further liability communication, including in connection with the conversion of Accounts contemplated above, or obligation of either party (y) continued billing and collections in substantially the same manner as such functions were performed prior to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity expiration or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any earlier termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 1 contract
Samples: Retailer Program Agreement (Haverty Furniture Companies Inc)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and prior written notice to the Issuer, the Collateral Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) belowSections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(hd) Sections 6, 7 (with respect Promptly after notice of any removal for Cause pursuant to any indemnity Section 14 hereof or insurance provided thereunder), 8 (with respect to any accrued and unpaid resignation of the Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Collateral Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or to be subject to U.S. federal, state or local income tax on a net basis (including any tax liability imposed under Section 141446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (i) or (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Credit Income Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force and effect until the first of the following occurs: (i) the final payment in full of the Notes and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full holders of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Securities; or (iii) the early termination of this Agreement in accordance with Section 12(b), subsections (c), (d), (eb) or (fc) of this Section 11 or Section 1412 of this Agreement.
(b) Subject only Notwithstanding any other provision hereof to clause the contrary (cbut subject to subsection (e) below), this Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, upon 60 at least 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that provided, that, the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Agreement or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of This Agreement shall be automatically terminated in the event the Collateral Manager pursuant to this Agreement shall be effective until or the date as Issuer takes any action which would require a registration of which a successor the Issue or of the pool of Assets under the provisions of the Investment Company Act, and the Issuer notifies the Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)thereof.
(d) Promptly after notice If this Agreement is terminated pursuant to this Section 11, neither party shall have any further liability or obligation to the other, except as provided in Sections 7(c), 10 (other than the first sentence of any clause (a) thereof), 13, 14 and 20(b) and (c) of this Agreement.
(e) Any removal under Section 14 or any resignation of the Collateral Manager while any Notes are Outstanding will not be effective until (i) the appointment by the Issuer, at the direction of a Majority of the Class A Notes and a Majority of the Limited Partnership Interests (excluding any Limited Partnership Interests owned by the Collateral Manager), of a successor collateral manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice an established institution with experience managing assets similar to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause Assets which (e) below; provided that such successor Collateral Manager (iA) has demonstrated an ability to professionally and competently perform duties similar reasonably comparable to those imposed upon the Collateral Manager hereunderhereunder and under the Indenture, (iiB) is legally qualified and has the capacity to assume act as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the IndentureIndenture applicable to the Collateral Manager, (iiiC) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does shall not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, become required to register as an investment company under the 1940 provisions of the Investment Company Act and (vD) with respect shall not result in the imposition of any entity-level or withholding tax on the Issuer or the payments to which the Global Rating Agency Condition holders of Notes and (ii) written acceptance of appointment and assumption of all of the duties and obligations of the Collateral Manager hereunder and under the terms of the Indenture applicable to the Collateral Manager by such successor collateral manager. The Issuer shall use its commercially reasonable efforts to appoint a successor collateral manager to assume the duties and obligations of the removed or resigning Collateral Manager. If within 90 days following a notice of resignation or removal no replacement collateral manager has been satisfiedappointed and accepted such appointment, the Collateral Manager may petition a court of competent jurisdiction for the appointment of a successor collateral manager. No vote of the holders of the Class A Notes or Limited Partnership Interests will be required in connection with such appointment by a court of competent jurisdiction.
(ef) A Majority In the event of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager by the Issuer pursuant to this Agreement, the Issuer shall have all of the rights and such proposed successor will be appointed remedies available with respect thereto at law or equity, and, without limiting the successor foregoing, the Issuer or the Trustee, to the extent so provided in the Indenture, may by notice in writing to the Collateral Manager by as provided under this Agreement terminate all the Issuer; provided that rights and obligations of the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled under this Agreement (except those that survive termination pursuant to such Collateral Management Fee set forth subsection 11(d) above or as otherwise provided in Sections 8(bthis Agreement). Upon the later of the expiration of the applicable notice periods period with respect to termination specified in this Section 11 or Section 12 or in Section 14 of this Agreement, as applicable, and the upon acceptance by a successor collateral manager of its appointment hereunder by the successor Collateral Managerappointment, all authority and power of the Collateral Manager hereunderunder this Agreement or the Indenture, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity Person pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such successioncollateral manager.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Term Termination. (a) This Agreement shall commence be effective as of the date first set forth given above and shall continue in force until effect for two (2) years. It is renewable annually thereafter so long as such continuance is specifically approved at least annually by the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14Sole Director.
(b) Subject only to clause This Agreement may be terminated at any time, without payment of any penalty, (ci) below, by the Collateral Manager may resignSole Director, upon 60 sixty (60) days’ prior written notice to K2 and Sub-Adviser, (ii) by K2 or Sub-Adviser upon at least sixty (60) days’ written notice to the Issuer other party, (iii) by K2 or the Subsidiary upon a material breach by Sub-Adviser of any of Sub-Adviser’s obligations or representations under this Agreement if such shorter notice as breach is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders not corrected within five (5) Business Days of receipt); provided that business days after notice thereof by K2 or the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance Subsidiary, and (iv) by the Collateral Manager Sub-Adviser upon a material breach by any of its duties hereunder the Subsidiary or K2 of an obligation or representation under this Agreement if such breach is not corrected within five (5) business days after notice thereof by the Indenture to be a violation of such law or regulationSub-Adviser.
(c) No resignation or removal This Agreement shall not be assigned without the consent of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all Sole Director on behalf of the Collateral Manager’s duties Subsidiary, and obligations pursuant to this will terminate upon any termination of the Management Agreement in writing (an “Instrument of Acceptance”)between K2 and the Subsidiary.
(d) Promptly after notice of any removal under Section 14 or any resignation of This Agreement shall terminate immediately on the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such Sub-Adviser’s written notice to the Holders and each Rating Agency and shall appoint other parties in circumstances where the Sub-Adviser ceases to have a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all permission under Part IV of the responsibilities, duties Financial Services and obligations Markets Acx 0000 xhich covers the performance of the Collateral Manager hereunder and services under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedthis Agreement.
(e) A Majority This Agreement shall terminate immediately on written notice from one party to the others in the event that any of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above parties has become insolvent, gone into liquidation (other than subclause (va voluntary liquidation for the purpose of reconstruction or amalgamation forthwith to be carried into effect) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied seeks to enter into a formal arrangement with respect thereto.its creditors;
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later notification of the expiration termination of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The IssuerAgreement, the Trustee and Sub-Adviser shall continue to provide the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with services under this Agreement and during any notice period, save as shall be necessary to effect any such succession.otherwise agreed upon with K2. # 1538627 v. 1
(g) If this Agreement is terminated pursuant to this Section 12Termination shall not affect the status, such termination shall be without obligations or liabilities of any further liability or obligation of either party hereto to the otherothers (including, except as provided without limitation, K2’s obligation to pay fees in clause (h) belowrespect of the period prior to termination in accordance with this Agreement).
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Subadvisory Agreement (Franklin Alternative Strategies Funds)
Term Termination. (a) This Until this Agreement is terminated in accordance with its terms, this Agreement shall commence as be in effect until [—], 2012 (the “Initial Term”) and shall be automatically renewed for a one-year term each anniversary date thereafter (a “Renewal Term”) unless at least two-thirds of the date first set forth above and shall continue in force until the first of the following occurs: Independent Directors agree that (i) there has been unsatisfactory performance by the final liquidation of Manager that is materially detrimental to the Assets Company and the final distribution of the proceeds of such liquidation to the Noteholders, Subsidiaries or (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice compensation payable to the Issuer (or such shorter notice as Manager hereunder is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)unfair; provided that the Collateral Company shall not have the right to terminate this Agreement under clause (ii) above if the Manager agrees to continue to provide the services under this Agreement at a reduced fee that at least two-thirds of the Independent Directors determines to be fair pursuant to the procedure set forth below. If the Company elects not to renew this Agreement at the expiration of the Initial Term or any Renewal Term as set forth above, the Company shall deliver to the Manager prior written notice (the “Termination Notice”) of the Company’s intention not to renew this Agreement based upon the terms set forth in this Section 13(a) not less than 180 days prior to the expiration of the then existing term. If the Company so elects not to renew this Agreement, the Company shall designate the date (the “Effective Termination Date”), not less than 180 days from the date of the notice, on which the Manager shall cease to provide services under this Agreement, and this Agreement shall terminate on such date; provided, however, that in the event that such Termination Notice is given in connection with a determination that the compensation payable to the Manager is unfair, the Manager shall have the right to resign immediately upon renegotiate such compensation by delivering to the effectiveness Company, no fewer than 45 days prior to the prospective Effective Termination Date, written notice (any such notice, a “Notice of any material change in applicable law or regulations which renders Proposal to Negotiate”) of its intention to renegotiate its compensation under this Agreement. Thereupon, the performance Company (represented by the Collateral Independent Directors) and the Manager shall endeavor to negotiate in good faith the revised compensation payable to the Manager under this Agreement. Provided that the Manager and at least two-thirds of its duties hereunder or under the Indenture Independent Directors agree to the terms of the revised compensation to be a violation payable to the Manager within 45 days following the receipt of the Notice of Proposal to Negotiate, the Termination Notice shall be deemed of no force and effect and this Agreement shall continue in full force and effect on the terms stated in this Agreement, except that the compensation payable to the Manager hereunder shall be the revised compensation then agreed upon by the parties to this Agreement. The Company and the Manager agree to execute and deliver an amendment to this Agreement setting forth such revised compensation promptly upon reaching an agreement regarding same. In the event that the Company and the Manager are unable to agree to the terms of the revised compensation to be payable to the Manager during such 45-day period, this Agreement shall terminate, such termination to be effective on the date which is the later of (A) 10 days following the end of such law or regulation45-day period and (B) the Effective Termination Date originally set forth in the Termination Notice.
(b) In recognition of the level of the upfront effort required by the Manager to structure and acquire the assets of the Company and the Subsidiaries and the commitment of resources by the Manager, in the event that this Agreement is terminated in accordance with the provisions of Section 13(a) of this Agreement, the Company shall pay to the Manager, on the date on which such termination is effective, a termination fee (the “Termination Fee”) equal to three times the sum of the average annual Base Management Fee during the 24-month period immediately preceding the date of such termination, calculated as of the end of the most recently completed fiscal quarter prior to the date of termination. The obligation of the Company to pay the Termination Fee shall survive the termination of this Agreement.
(c) No resignation later than 180 days prior to the anniversary date of this Agreement of any year during the Initial Term or removal Renewal Term, the Manager may deliver written notice to the Company informing it of the Collateral Manager’s intention to decline to renew this Agreement, whereupon this Agreement shall not be renewed and extended and this Agreement shall terminate effective on the anniversary date of this Agreement next following the delivery of such notice. The Company is not required to pay to the Manager the Termination Fee if the Manager terminates this Agreement pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”Section 13(c).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 1213, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder9, 10, 13(b), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g15(b), 15and 16 of this Agreement. In addition, 17, 21, 22, 23 Sections 11 and 25 21 of this Agreement shall survive any termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 1 contract
Samples: Management Agreement (Apollo Commercial Real Estate Finance, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and prior written notice to the Issuer, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Xxxxxxxxxx Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Credit Income Corp.)
Term Termination. 9.1. The term of this Agreement (athe “Term”) This Agreement shall commence as of the date first set forth above and Effective Date and, unless earlier terminated in accordance herewith, shall continue in force until the first of the following occurs: for an initial one (i1) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholdersyear term. The Term hereof shall be automatically renewed thereafter for successive one (1) year Terms, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior unless either party gives written notice to the Issuer other of its intention not to renew this Agreement at least thirty (30) days before the end of the current Term. Notwithstanding the foregoing, either party may terminate this Agreement at any time by providing at least ninety (90) days prior written notice of its intention to terminate this Agreement. If, after the Effective Date, HMO revises the Provider Manual pursuant to Section 2.3 or otherwise changes its operational policies pursuant to Section 2.7, and Provider does not agree with such shorter notice as is acceptable revisions or changes, Provider may exercise its right to terminate this Agreement on the Issuer) date on which the revisions or changes shall become effective. If Provider opts to terminate this Agreement because Provider does not agree with any such revisions or changes, then during the interim period between the effective date of the revisions or changes and the Trustee termination of this Agreement, Provider will not be obligated to comply with the revisions or changes; provided, however, Provider must have delivered prior written notice of termination to HMO at least ten (10) days prior to implementation of the revisions or changes, and the Issuer shall direct revisions or changes must not be required by the Trustee to distribute Department or by any change in Federal Law or Commonwealth Law.
9.2. Notwithstanding the above, HMO may terminate this Agreement immediately if any of the following occur:
9.2.1. In the event that Provider (or, if Provider is a copy of such notice to group, any Group Provider) is expelled, disciplined, barred from participation in, or suspended from receiving payment under any state's Medicaid Program or the Holders within five (5) Business Days of receipt); provided Medicare Program;
9.2.2. In the event that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance license issued by the Collateral Manager of its duties hereunder Commonwealth to Provider (or, if Provider is a group, any Group Provider) to provide the health services necessary to satisfy Provider's obligations under this Agreement is revoked;
9.2.3. Upon the loss or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal suspension of the Collateral Manager pursuant Provider's professional liability insurance coverage as required by this Agreement;
9.2.4. If Provider (or, if Provider is a group, any Group Provider) (a) fails to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed satisfy any or all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument credentialing requirements of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.HMO,
Appears in 1 contract
Samples: Provider Agreement
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full or redemption or prepayment in whole of the Debt and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Holders; or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fc) or Section 1413. In the absence of the circumstances described in clause (i) or (ii) of the preceding sentence, no termination of this Agreement or any removal or resignation of the Collateral Manager shall be effective until written acceptance of appointment by a successor collateral manager and the effective assumption by such successor collateral manager of the duties of the Collateral Manager have been received. The Collateral Manager hereby acknowledges and agrees that the Collateral Manager shall continue to perform its obligations hereunder and under the Indenture in the manner provided herein and therein until the payment in full or redemption in whole of the Debt and the termination of the Indenture in accordance with its terms unless any of the events described in clause (ii) or (iii) of the second preceding sentence occur prior thereto.
(b) Subject only Notwithstanding any other provision hereof to clause (c) belowthe contrary, this Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer and the Trustee (who shall forward notice to the Loan Agent who will forward to the Class A-L1 Lenders and Class A-L2 Lenders) (or such shorter notice period as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which that renders the performance by the Collateral Manager of its duties hereunder under this Agreement or under the Indenture to be a violation of such law or regulation). The Issuer shall use its best efforts to appoint a successor Collateral Manager to assume such duties and obligations.
(c) No resignation or removal of the Collateral Manager pursuant to this This Agreement shall be effective until automatically terminated in the date as event that the Board of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of Managers determines in good faith that the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 Issuer or any resignation portion of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets has become required to be registered as, register as an investment company under the 1940 provisions of the Investment Company Act by virtue of any action taken by the Collateral Manager (and (v) with respect to which such requirement has not been eliminated after a period of 45 days), and the Global Rating Agency Condition has been satisfiedIssuer notifies the Collateral Manager thereof.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 2(h)(i), 6, 8(c), 10, 14, 15 and 33, which provisions shall survive the termination of this Agreement.
(e) Within 30 days of the resignation, termination or removal of the Collateral Manager pursuant to Section 12 or 13 while any of the Debt is outstanding, a Majority of the Preferred Interests shall propose an Eligible Successor Collateral Manager to the Issuer by |US-DOCS\153065469.7|| delivering notice thereof to the Trustee, the Collateral Manager and the holders of the Controlling Class. A Majority of the Controlling Class will either (i) consent to such successor collateral manager, or (ii) propose an Eligible Successor Collateral Manager by delivering notice of such proposed successor to the Trustee, the Collateral Manager and the holders of the Preferred Interests within 30 days of receipt of notice from a Majority of the Preferred Interests. If such notice is received by the Trustee within such time period, a Majority of the Preferred Interests will have 30 days from receipt of such notice to (i) object to such successor collateral manager, and (ii) propose an Eligible Successor Collateral Manager by delivery of notice of such objection and proposed successor to the Trustee, the Collateral Manager and the holders of the Controlling Class. If no such notice is received by the Trustee within such time period, such proposed successor collateral manager shall be appointed Collateral Manager. If, however, such notice is received by the Trustee within such time period, a Majority of the Controlling Class shall have 30 days from receipt of such notice to either (i) consent to such successor collateral manager, or (ii) propose an Eligible Successor Collateral Manager by delivery of notice of such objection and proposed successor to the Trustee, the Collateral Manager and the holders of the Preferred Interests. If such notice is received by the Trustee within such time period, a Majority of the Preferred Interests shall have 30 days from receipt of such notice to object to such successor collateral manager by delivery of notice of such objection to the Trustee, the Collateral Manager and the holders of the Controlling Class. If such notice is received by the Trustee within such time period, a Majority of the Controlling Class, a Majority of the Preferred Interests or the resigning or removed collateral manager may petition any court of competent jurisdiction for the appointment of a successor collateral manager without the approval of any holders. Any notice to holders contemplated above may be effected by delivering such notice to the Trustee for delivery to the holders of the appropriate Class of Debt in accordance with the terms of the Indenture.
(f) Notwithstanding the foregoing, if no successor collateral manager shall have been appointed by the Issuer or an instrument of acceptance by a successor collateral manager shall not been delivered as provided in clause (hg) belowbelow within 90 days following the date of resignation, termination or removal of the Collateral Manager (unless the expiration of such 90-day period is caused by delays in satisfying the Rating Agency Confirmation, in which case such Rating Agency Confirmation must be satisfied no later than 30 days after the expiration of such 90-day period), any of the resigning or removed Xxxxxxxxxx Manager, the Issuer or any Holder may petition any court of competent jurisdiction for the appointment of a successor collateral manager, in either such case, whose appointment shall become effective after such successor has accepted its appointment without the approval of any holder of Debt.
(g) An “Eligible Successor Collateral Manager” shall be an institution that (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager, (ii) is legally qualified and has the capacity to act as collateral manager and assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) by its appointment will not cause or result in the Issuer or any portion of the Assets becoming required to register under the provisions of the Investment Company Act and (iv) has accepted its appointment in writing and has agreed to perform all duties of the Collateral Manager pursuant to this Agreement and |US-DOCS\153065469.7|| any letter agreement that the Collateral Manager executed in connection with its duties hereunder.
(h) Upon the acceptance by a successor Collateral Manager of such appointment, all rights and obligations of the Collateral Manager under this Agreement shall terminate, except as provided in Sections 2(h)(i), 6, 7 (8(c), 10, 14(a), 15 and 33. Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1413, as applicable, and upon the acceptance by a successor Collateral Manager of such appointment, all authority and power of the Collateral Manager under this Agreement and the Indenture, whether with respect to the Assets or otherwise, shall automatically and without further action by any Person pass to and be vested in the successor Collateral Manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Carlyle Credit Solutions, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (viv) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class Subordinated Notes will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (viv) thereof) following the within 30 days of initial notice of the resignation or removal of the Collateral Manager and if the Majority of the Controlling Class consents thereto, such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto. If a Majority of the Subordinated Notes fails to nominate such a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or if a Majority of the Controlling Class does not consent thereto, then a Majority of the Controlling Class shall, within 60 days of initial notice of the resignation or removal of the Collateral Manager, nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (iv) thereof). If a Majority of the Subordinated Notes consents to such Controlling Class nominee, such nominee shall be appointed the successor Collateral Manager by the Issuer; provided the Global Rating Agency Condition has been satisfied with respect thereto. If no successor Collateral Manager is appointed within 90 days with the consent thereto of a Majority of the Controlling Class (if nominated by a Majority of the Subordinated Notes) or the consent thereto of a Majority of the Subordinated Notes (if nominated by a Majority of the Controlling Class) (or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Issuer, the Collateral Manager, a Majority of the Subordinated Notes and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in any such case whose appointment shall become effective after such successor has accepted its appointment and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in an Instrument of Acceptance and without the consent of any Holder.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(a) (and, to the extent it defers such fees, the related Aggregate Collateral Management Fee due and owing to such successor Collateral Manager under Section 8(b)) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8 without the prior written consent of 100% of each Class of Notes voting separately by Class, including Collateral Manager Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Aggregate Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC, Inc.)
Term Termination. (a) This Agreement shall commence as continue from the Effective Date hereof through February 28, 2014, and may be extended by the mutual written agreement of the date first set forth above and shall continue in force until the first of the following occurs: parties (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notesperiod, and any extensions thereof, the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b“Term”), (c), (d), (e) or (f) or Section 14.
(b) Subject only Notwithstanding anything in Section 17(a) to clause the contrary, this Agreement may be terminated as provided below:
(ci) belowEither party shall have the right to terminate this Agreement upon thirty (30) days prior written notice if the other party breaches this Agreement and, if susceptible of cure, fails to cure such breach within such 30-day period.
(ii) Retailer shall have the Collateral Manager may resignright to terminate this Agreement on not less than one hundred and twenty (120) days prior written notice if Bank elects not to increase the Credit Review Point pursuant to 5(b); provided, that in each case, any such notice of termination is given not more than one (1) year after Bank first advises Retailer of such election; provided, further, that as of the first date on which the aggregate outstanding indebtedness for all Accounts exceeds the Credit Review Point then in effect, this Agreement shall automatically and immediately terminate unless the parties shall have mutually agreed in writing to continue the Program.
(iii) Bank shall have the right to terminate the Agreement upon 60 fifteen (15) business days’ prior written notice to the Issuer (or such shorter notice Retailer if Retailer fails to maintain Tangible Net Worth as is acceptable defined in Schedule 14(b) as and to the Issuerextent required therein; provided, that if during such fifteen (15) and the Trustee (and the Issuer shall direct the Trustee business day period Retailer provides to distribute a copy Bank an Eligible Letter of such notice Credit in an amount equal to the Holders then-current Letter of Credit Amount (as defined in Appendix A), then, as to the specific reporting period within five which such default occurred, such default shall be deemed cured. The terms and conditions applicable to any such Letter of Credit are set forth on Appendix A attached hereto.
(5iv) Business Days of receipt); provided that [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Collateral Manager Commission.]
(v) Bank shall have the right to resign immediately upon the effectiveness of any material terminate this Agreement if (x) applicable laws, regulations or other authority regulating Bank’s rate or fee structure change in applicable law a manner that is materially adverse to Bank or regulations which renders are preempted, or (y) Bank determines that the performance by Program does not qualify (or if Bank reasonably determines that there is a material risk that the Collateral Manager Program will not qualify) as an “open-end” credit facility under Regulation Z, 12 C.F.R. 226.2(a)(20).
(vi) [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission.]
(vii) [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission.]
(A) [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission.]
(B) [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission.] [**Confidential portion has been omitted pursuant to a request for confidential treatment and has been filed separately with the Commission.]
(viii) This Agreement shall automatically terminate if either party is the subject of bankruptcy, reorganization or similar proceedings, elects to wind up or dissolve its duties hereunder operations, suspends its business, or under the Indenture to be has a violation of such law liquidator, trustee or regulationcustodian appointed over its affairs.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager Notwithstanding termination by either party (i) has demonstrated an ability the terms of this Agreement will continue to professionally and competently perform duties similar apply to those imposed upon any Accounts established or transactions occurring, prior to the Collateral Manager hereundereffective termination date, (ii) is legally qualified the provisions of Sections 9 (Ownership of Accounts and has the capacity to assume all of the responsibilitiesInformation), duties 13 (Accountholder Information/Confidentiality and obligations of the Collateral Manager hereunder Data Security), 16 (Indemnification), 17 (Term/Termination) and under the applicable terms of the Indenture21 (Miscellaneous) will survive, and (iii) has agreed Bank may use Retailer’s name and marks for purposes of liquidating, transferring, selling, administering or collecting Accounts. Upon expiration or earlier termination of this Agreement, Bank will have the right, in addition to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company and without waiving any other rights it may have under the 1940 Act and (v) with respect terms of this Agreement or applicable law, to liquidate the Accounts in any lawful manner which may be expeditious or economically advantageous to Bank, including, without limitation, the Global Rating Agency Condition has been satisfied.
(e) A Majority issuance of a replacement or substitute credit card, transferring or selling the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled Accounts to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass soliciting the affected Accountholders to and be vested in transfer or convert balances to other credit vehicles. Bank may continue to provide the successor Collateral Manager. The Issuer, Program following the Trustee and the successor Collateral Manager shall take such action (expiration or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and termination hereof as shall be Bank reasonably deems necessary to effect any transfer, conversion or substitution of the Accounts; provided, that such succession.
continuation shall in no circumstances exceed six (g6) If this Agreement is terminated pursuant months. Bank may use the Retailer’s names and marks through the Final Liquidation Date (as defined in Section 17(b)) to this Section 12communicate with Accountholders in connection with any such liquidation, conversion, substitution or sale; provided, that such termination use shall be without limited to (x) the extent necessary to identify the Program as the subject of any further liability communication, including in connection with the conversion of Accounts contemplated above, or obligation of either party (y) continued billing and collections in substantially the same manner as such functions were performed prior to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity expiration or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any earlier termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 1 contract
Samples: Retailer Program Agreement (Haverty Furniture Companies Inc)
Term Termination. (a) This Agreement Executive's employment pursuant hereto shall commence as of on the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement (the "Employment Date") and shall remain in accordance with Section 12(b)effect, subject to renewal pursuant to subparagraph (b) of this paragraph 2 and to earlier termination pursuant to subparagraph (c) of this paragraph 2, until December 2, 1999 (the "Expiration Date"). The term of employment hereunder, (d)commencing with the Employment Date and including any renewals or extensions hereof, (e) or (f) or Section 14is hereinafter referred to as the "Employment Term."
(b) Subject only In addition to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral ManagerEmployment Term as hereinabove provided, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and Executive's employment by the Company shall terminate on the Date of Termination (as hereinafter defined) as follows:
(i) automatically upon Executive's death;
(ii) at the Company's option if, as a result of Executive's incapacity due to physical or mental illness, he is unable to perform the duties of his employment hereunder for a continuous period of sixty (60) days or an aggregate of ninety (90) days in any one hundred eighty (180) day period (each such period being hereinafter referred to as a "Disability Period");
(iii) at the Company's option at any time for Cause. "Cause" shall be necessary defined to effect mean (A) the commission by Executive of any such succession.
felony, (gB) If this Agreement is terminated pursuant to this Section 12the commission by Executive of any crime involving dishonesty, such termination shall be without (C) the engagement by Executive in any further liability act of fraud, misappropriation or obligation misfeasance, (D) the engagement by Executive in any activity constituting a material breach of either party to the otherparagraphs 9, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity 10 or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination 11 of this Agreement pursuant or other material breach by Executive of any provision of this Agreement, (E) Executive's failure to carry out the reasonable written directives of the Board or Chief Operating Officer (consistent with the provisions of this Section 12 Agreement) or Section 14.his repeated non-attentiveness to or repeated failure to carry out his duties under this Agreement, (F) the engagement by Executive in any transaction with the Company involving a conflict of interest or self-dealing, without the prior written consent of the Board, or (H) the engagement by Executive in conduct materially adverse to the interests of the Company or which brings discredit to the Company and materially adversely affects the Company; and
Appears in 1 contract
Samples: Employment Agreement (Credentials Services International Inc)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Debt and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and to the Issuer, the Collateral Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under the Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Collateral Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Xxxxxxxxxx Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Collateral Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Core Income Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force and effect until the first of the following occurs: (i) the final payment in full of the Notes and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets Collateral and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms ; or (iii) the early termination of this Agreement in accordance with Section 12(bsubsection (b), (c), (d), (e) or (fd) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only Notwithstanding any other provision hereof to clause (c) belowthe contrary, this Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer ' (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such written notice to the Holders within five (5) Business Days of receipt)Issuer; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law no such termination or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed agreed in writing to assume all of the Collateral Manager’s 's duties and obligations pursuant to this Agreement, and the Issuer shall use its best efforts to appoint a successor Collateral Manager to assume such duties and obligations. Any replacement Collateral Manager must be appointed by the Issuer and approved by the Holders of a Majority of the Aggregate Outstanding Amount of the Controlling Class of Notes.
(c) This Agreement may be terminated at any time by the Issuer, and the Issuer may remove the Collateral Manager, upon 90 days' prior written notice to the Collateral Manager (or such shorter notice as is acceptable to the Collateral Manager). The Issuer agrees that prior to the delivery by it of a notice of termination pursuant to this subsection (c), it shall obtain the consent to such termination from the holders of a Majority of the Aggregate Outstanding Amount of the Controlling Class of Notes. Notwithstanding the foregoing, no termination pursuant to this subsection (c) shall be effective until the date as of which a successor Collateral Manager shall have agreed in writing (an “Instrument to assume all of Acceptance”)the Collateral Manager's duties and obligations pursuant to this Agreement.
(d) Promptly after notice This Agreement shall be automatically terminated in the event that the Issuer determines in good faith that the Issuer or the Co-Issuer or the pool of Collateral has become required to be registered under the provisions of the Investment Company Act, and the Issuer notifies the Collateral Manager thereof. 69
(e) Upon termination of this Agreement, neither party shall have any further liability or obligation to the other, except as provided in Sections 2(f)(i), 10 and 15 of this Agreement.
(f) Any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, Outstanding will be effective upon the appointment by the Issuer shall transmit or cause (and the Trustee to transmit copies acceptance in writing by such successor Collateral Manager) of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager is an established institution which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume act as Collateral Manager hereunder, as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, Indenture and (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does shall not cause or result in the Issuer becoming, or require the Co-Issuer or the pool of Assets Collateral to be registered as, an investment company become required to register under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority provisions of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral ManagerInvestment Company Act. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effect effectuate any such succession.
(g) If this Agreement is terminated In the event of removal of the Collateral Manager pursuant to this Section 12Agreement by the Issuer or, such termination shall be without any further liability or obligation of either party to the otherextent so provided in the Indenture, except by the Trustee, the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer or, to the extent so provided in the Indenture, the Trustee may by notice in writing to the Collateral Manager as provided in clause under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (hexcept those that survive termination pursuant to Section 12(e) below.
(h) Sections 6, 7 (above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Collateral or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor Collateral Manager upon the appointment thereof.
Appears in 1 contract
Samples: Collateral Management Agreement (Pilgrim America Capital Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the NotesDebt, and the satisfaction and discharge of the Indenture in accordance with its respective terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fd) or Section 1414 hereof (subject, in all cases, to Section 12(f)).
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to which the Issuer agrees) to the Issuer) , the Collateral Trustee and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations regulation which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such any law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to this Agreement Manager, for cause or without cause, shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Debt is Outstanding, the Issuer shall transmit or cause at the Trustee to transmit copies direction of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.Majority
Appears in 1 contract
Samples: Collateral Management Agreement (Barings Private Credit Corp)
Term Termination. 12.1 This Supply Agreement will have a term (athe “Initial Term”) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholderswhich will run through December 31, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b)2019. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is Unless terminated earlier pursuant to this Section 12, such termination this Supply Agreement will automatically renew for an additional period of two (2) years (the “Renewal Term” and, together with the Initial Term, the “Term”). Any additional renewals beyond the Term shall be without based upon the mutual agreement of the Parties. Within [ * ] days of the expiration of the Initial Term, Cerus and Porex will discuss the pricing terms for the Renewal Term. If Cerus and Porex agree on new pricing within such period, such pricing will become effective as of [ * ]. The Parties hereto agree that in no event shall the price increase for any further liability or obligation of either party Product produced hereunder exceed [ * ]. If Cerus and Porex are unable to agree within such [ * ] days after having negotiated in good faith and adhering to the otherlimit on pricing increases set forth in the preceding sentence, except then this Supply Agreement will, at Cerus’ option either (i) terminate at the expiration of the Initial Term or (ii) renew with a [ * ] increase to the pricing in effect as provided in clause (h) belowof the expiration of the Initial Term, which pricing shall be effective as of [ * ].
12.2 Cerus may terminate this Supply Agreement in its sole discretion at any time by giving Porex at least twelve (h12) Sections 6, 7 months’ prior written notice of its intent to terminate this Supply Agreement.
12.3 In the event that Cerus’ aggregate billable units fall below [ * ] units in any calendar year during the Term (with respect unless such shortfall is due to any indemnity regulatory or insurance provided thereundercompliance issues or facility-driven production downtime), 8 Porex may terminate this Supply Agreement in its sole discretion by giving Xxxxx at least twelve (12) months’ prior written notice of its intent to terminate this Supply Agreement.
12.4 If a Party materially breaches this Supply Agreement and such breach remains uncured for a period of ninety (90) days after written notice containing details of the breach is delivered to the breaching Party, then the non-breaching Party may terminate this Supply Agreement as to the breaching Party by further notice delivered no later than thirty (30) days after the expiration of the initial ninety (90) day cure period.
12.5 Each Party may terminate this Supply Agreement effective immediately with respect written notice in the event the other Party (“Insolvent Party”) files for bankruptcy, is adjudicated bankrupt, takes advantage of applicable insolvency laws, makes an assignment for the benefit of creditors, is dissolved or has a receiver appointed for its property (which in the case of a receiver is not removed within thirty (30) days after notice to any accrued the Insolvent Party). Such termination is only effective as to the Insolvent Party.
12.6 The provisions of Sections 2.3, 2.4, 4, 5 and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 7 through 11 of this Supply Agreement shall survive any termination of this the Supply Agreement pursuant to this Section 12 or Section 14and remain in effect in accordance with their terms.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Debt and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), subsection (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only Notwithstanding any other provision hereof to clause (c) belowthe contrary, this Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, upon 60 30 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of Rating Agency; provided, however, that no such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law termination or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved and has accepted and shall have assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing writing, and the Issuer shall use its best efforts to appoint a successor collateral manager to assume such duties and obligations.
(c) This Agreement shall be automatically terminated in the event that the Issuer determines in good faith that the Issuer or the pool of Assets has become required to register as an “Instrument investment company under the provisions of Acceptance”)the Investment Company Act by virtue of any action taken by the Collateral Manager, and the Issuer notifies the Collateral Manager thereof.
(d) Promptly after notice If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 2(g), 8(c), 10 and 15 of this Agreement, which provisions shall survive the termination of this Agreement.
(i) Upon any removal under for cause pursuant to Section 14 or any resignation of the Collateral Manager that is pursuant to take place this Section 12 while any of the Notes are Debt is Outstanding, the Issuer shall transmit Issuer, unless a Majority of the Controlling Class has objected (such objection not be unreasonable) within 15 days after written notice of the appointment has been provided to holders of the Secured Debt, (including, for the avoidance of doubt, Interests held by the Collateral Manager, its Affiliates and any account or cause fund managed by the Trustee to transmit copies Collateral Manager or any of such notice to the Holders and each Rating Agency and its Affiliates), shall appoint as a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager collateral manager any established institution which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume act as collateral manager hereunder, as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does shall not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company become required to register under the 1940 provisions of the Investment Company Act and (viv) will not, by its appointment, cause the Issuer to be subject to U.S. federal, state or local income tax on a net basis (including any withholding tax liability under Section 1446 of the Code). If no successor collateral manager shall have been appointed or an instrument of acceptance and assumption by a successor collateral manager shall not have been delivered to the Collateral Manager (a) within 20 days after approval of the successor collateral manager by the Issuer, and the issuance of notice of a vote regarding the successor collateral manager to the Holders of the Secured Debt, or (b) within 40 days after the date of notice of resignation or a Notice of Removal (as defined below) of the Collateral Manager, the resigning or removed Xxxxxxxxxx Manager or the Trustee, on behalf of the Holders of the Secured Debt, may petition any court of competent jurisdiction for the appointment of a successor collateral manager without the approval of the Holders of the Secured Debt. In connection with respect such appointment and assumption and subject to which the Global Rating Agency Condition has been satisfied.
(e) A provisions of the Indenture, the Issuer may make such arrangements for the compensation of such successor as the Issuer and such successor shall agree; provided, however, that no compensation payable to such successor from payments on the Assets shall be greater than that paid to the Collateral Manager under this Agreement without the prior written consent of a Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause Debt (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(bvoting collectively). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effect effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(gii) If this Agreement is terminated Upon a successor collateral manager agreeing in writing to assume all of the Collateral Manager’s duties and obligations hereunder, any amendment reducing the Senior Collateral Management Fee or the Subordinated Collateral Management Fee made after the Closing Date and prior to the date of such written agreement shall no longer be given effect and the Senior Collateral Management Fee and the Subordinated Collateral Management Fee payable to such successor collateral manager shall be equal to the Senior Collateral Management Fee and the Subordinated Collateral Management Fee on the Closing Date; provided that any amendment increasing the Senior Collateral Management Fee or the Subordinated Collateral Management Fee made after the Closing Date and prior to the date of such written agreement shall remain in full force and effect upon a successor collateral manager agreeing in writing to assume all of the Collateral Manager’s duties and obligations hereunder.
(f) In the event of removal of the Collateral Manager pursuant to this Section 12Agreement by the Issuer, such termination the Issuer shall be have all of the rights and remedies available with respect thereto at law or equity, and, without any further liability or obligation of either party limiting the foregoing, the Issuer may by notice in writing to the other, except Collateral Manager as provided in clause under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (hexcept those that survive termination pursuant to Section 12(d) below.
(h) Sections 6, 7 (above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (AG Twin Brook Capital Income Fund)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders of the Notes and the holders of the Interests, (ii) the payment in full of the Notes, Notes and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement with respect to the Collateral Manager in accordance with Section 12(b12(c), (c), (d), (ein connection with the resignation of such Collateral Manager pursuant to Section 12(b) or (f) or in connection with the removal of such Collateral Manager pursuant to Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, resign upon 60 ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to or termination of this Agreement with respect to such Collateral Manager in connection with such resignation or removal shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) or Section 12(e) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each Rating Agency (provided, however, in the case of Xxxxx’x, only for so long as any Class A Notes remain Outstanding) and shall appoint a successor Collateral Manager in accordance with Manager, at the procedures set forth in clause (e) below; provided that such successor Collateral Manager direction of a Majority of the Interests, which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Interests fails to nominate a successor within thirty (30) days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Interests within ten (10) days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within sixty (60) days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Interests approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within ninety (d90) above days (other than subclause or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within thirty (v30) thereofdays) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Interests and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in any such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any Holder of any Note or any holder of any Interest.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee Fees set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes, including Collateral Manager Notes, and of 100% of the holders of the Interests. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person Person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders, and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each the Rating Agency and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability ability, whether as an entity or by its principals or employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global S&P Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Subordinated Notes within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Subordinated Notes and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any holder or beneficial owner of any Notes.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes voting separately by Class, including Collateral Manager Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g12(h), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC 3, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its respective terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fd) or Section 1414 hereof (subject, in all cases, to Section 12(f)).
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to which the Issuer agrees) to the Issuer) and , the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)each Applicable Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations regulation which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to this Agreement Manager, for cause or without cause, shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or Upon any resignation of the Collateral Manager or any removal under Section 14 that is to take place while any of the Notes are Outstanding, the Issuer shall transmit at the direction of a Majority of the Subordinated Notes (or cause in the Trustee to transmit copies case of such removal for Cause of the Collateral Manager, if all of the Subordinated Notes consist of Collateral Manager Notes, a Majority of the most senior Class of Notes that is not comprised entirely of Collateral Manager Notes) will, with notice to the Holders and each Applicable Rating Agency and shall (with a copy to the outgoing Collateral Manager), appoint as a successor replacement Collateral Manager in accordance with the procedures set forth in clause (e) below; provided an institution that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume act as Collateral Manager hereunder, as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, 17 (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in either of the Issuer Co-Issuers becoming, or require the pool of Assets collateral to be registered as, an investment company under the 1940 Investment Company Act and (viv) does not cause the Issuer to be subject to U.S. federal income tax with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate its net income. No compensation payable to such a successor Collateral Manager from payments on the Assets shall be greater than that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of permitted to the Collateral Manager and such proposed successor will be appointed under this Agreement without the successor Collateral Manager prior written consent of a Majority of each Class of Notes, voting separately by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b)Class. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Managerherein, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Managerinstitution upon the acceptance by such institution of its appointment hereunder. The Issuer, the Trustee Trustee, the outgoing Collateral Manager and the successor Collateral Manager collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture as shall be necessary to effect any such succession. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of any law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, the Collateral Manager shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment, notice of such appointment is provided to each Applicable Rating Agency and without the consent of any Holder.
(ge) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hg) below.
(f) If Barings BDC resigns or is removed as Collateral Manager hereunder, within 30 days after the date on which a successor Collateral Manager (so long as such successor Collateral Manager is not an Affiliate of Barings BDC) has assumed the duties and obligations of the Collateral Manager hereunder, the Issuer will, and will cause the Co-Issuer to, change its name to remove any reference to “Barings.”
(g) Collateral Manager Notes will be disregarded and deemed not to be Outstanding with respect to a vote to (i) terminate this Agreement, (ii) remove or replace the Collateral Manager, (iii) approve a successor collateral manager, if the Collateral Manager is being terminated for Cause pursuant to Section 14 or (iv) waive an event constituting Cause under Section 14 as a basis for termination of the Collateral Management Agreement or removal of the Collateral Manager. For all other purposes, the voting rights of the Collateral Manager Notes will not be restricted.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder8(d), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g21, 22, 23 and 28, insofar as they relate to the period ending with the termination of this Agreement, and Sections 8(e), 12(h), 15, 17, 21, 22, 23 24 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14. 18 Section 13.
Appears in 1 contract
Samples: Collateral Management Agreement
Term Termination. 17.1 This Agreement shall be deemed effective upon the date of execution by a duly authorized representative of PCSC and shall continue until December 31 of the current year. Thereafter, this Agreement shall renew automatically for successive one-year additional terms unless terminated by either party in writing no less than thirty (30) days prior to the expiration date of the then current term. Anything to the contrary of this Agreement notwithstanding, either PCSC or DEALER may terminate this Agreement, and the appointment of DEALER as an Authorized Dealer of the Products, with or without cause, at any time upon written notice to the other to that effect, and said termination shall become effective thirty (30) days following the mailing of such notice, except where a shorter period for termination is provided in this Agreement.
17.2 During the period between the giving of any notice of non-renewal or of termination provided for in Paragraph 17.1 above and the effective date of expiration or of termination set forth in any such notice, delivery of Products to DEALER may, at the option of PCSC, be conditioned upon payment by certified check or in cash by DEALER upon or prior to delivery.
17.3 PCSC may immediately terminate this Agreement upon written notice to that effect upon the occurrence of any of the following events:
(a) This DEALER is in default in any material respect in the performance of any of its obligations under this Agreement shall commence as of or under any purchase order submitted by DEALER hereunder, including, without limitation, DEALER's obligations, under Paragraphs 2 and 3 above, to perform a retail function only, to sell the date first Products only to customers with facilities located in the Territory and to sell Products only from the sales location(s) set forth above and shall continue in force until on Exhibit C, and, under Paragraph 7.1 above, to pay each PCSC invoice for Products according to its terms; or
(b) Bankruptcy or insolvency proceedings are instituted by or against DEALER, or DEALER, is adjudicated a bankrupt, becomes insolvent, makes an assignment for the first benefit of creditors, or a receiver is appointed for all, or a substantial part, of DEALER's assets, or DEALER proposes or makes any arrangements for the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notesits debts, and the satisfaction and discharge of the Indenture in accordance with its terms any such proceedings, assignment or appointment is not dismissed or vacated within thirty (iii30) the early days.
17.4 The expiration or termination of this Agreement at any time shall, unless otherwise expressly agreed to in accordance with Section 12(b)writing by PCSC, (c)automatically operate, (d)as of the effective date thereof, (e) as a cancellation of any further deliveries or (f) Products to DEALER, and shall be construed as an automatic cancellation of all purchase orders and releases of DEALER for Products, whether or Section 14not any such orders have theretofore been accepted by PCSC.
(b) Subject only 17.5 In addition to clause (c) belowsuch other remedies for non-payment as are otherwise provided herein or by law, in the Collateral Manager may resignevent DEALER shall default in the payment of any indebtedness due to PCSC pursuant to the terms of this Agreement when and as the same become due and payable, upon 60 days’ prior written then all liabilities and obligations of DEALER to PCSC pursuant to this Agreement, any other agreement, or otherwise, whether or not then due, shall become immediately due and payable, without further notice to DEALER.
17.6 Except as otherwise provided in Paragraph 17.5 above, DEALER shall pay all monies owed to PCSC at the Issuer time of the expiration or termination of this Agreement within thirty (30) days of the effective date of such expiration or such shorter notice as is acceptable termination regardless of the terms of payment that may have otherwise been granted to DEALER by PCSC prior to the Issuer) and effective date of expiration or termination; provided, however, that if any terms of payment for payment of any invoice to PCSC by DEALER at the Trustee (and the Issuer shall direct the Trustee to distribute a copy time of such notice expiration or termination then provide for payment thereof in less than thirty (30) days, such invoice shall be payable to the Holders within five (5) Business Days applicable terms of receipt)payment.
17.7 Anything herein to the contrary notwithstanding, expiration or termination of DEALER's appointment as an Authorized Dealer of the products shall in no way affect any outstanding obligations for payments due and owing from DEALER to PCSC, whether then due or to become due to PCSC, under this Agreement or otherwise or any other obligation of DEALER to PCSC pursuant hereto or otherwise, all of which obligations, if any, existing at the time of any such expiration or termination, DEALER hereby agrees to fulfill and perform.
17.8 Neither PCSC nor DEALER shall be liable to the other, or to any other party, by virtue of the expiration or termination of this Agreement due to any reason whatsoever, or due to no reason, or by virtue of the cancellation, pursuant to Paragraph 17.4 above, of any orders for Products that are undelivered on the effective date of any expiration or termination of this Agreement, including, without limitation, any liability for direct, indirect, special consequential or incidental damages sustained by reason of such expiration or termination, including, without limitation, any claim for loss or profits or prospective profits in respect of sales or anticipated sales of Products, or on account of any expenditures, investments, leases, capital improvements or any other commitments made by either of the parties in connection with their respective businesses made in reliance upon or by virtue of DEALER's appointment as an Authorized Dealer of the Products or otherwise; provided that the Collateral Manager not shall PCSC or DEALER have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance equitable remedies by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later reason of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence be effective as of the date first set forth above hereof and shall continue in force until for an initial term of five (5) years. Following. the first initial term, this Agreement shall be automatically renewed for successive renewal terms of two (2) years each unless, at least 90 days prior to the expiration of the following occurs: (i) initial term or the final liquidation then current renewal term, either party shall have notified the other in writing of the Assets and the final distribution of the proceeds of such liquidation its decision not to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of renew this Agreement if the terms hereof are to be amended in accordance connection with Section 12(b)any renewal, (c)an appropriate addendum shall be added hereto reflecting, (d)as applicable, (e) or (f) or Section 14the revised terms hereof.
(b) Subject only to clause If there is a material default by either party in the performance of the terms and conditions of this Agreement, and such default shall not have been cured, within a period of 30 days after receipt of written notice thereof (setting forth in detail the nature of such default), then this Agreement shall terminate as of the 31st day following the receipt of such written notice-
(c) belowThis Agreement shall be deemed immediately terminated, without the requirement of further action or notice by either party, in the event that either party, or a direct or indirect holding company of either party, shall become subject to voluntary or involuntary bankruptcy, insolvency, receivership, conservatorship, or like proceedings (including, but not limited to, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy takeover of such notice party by the applicable regulatory agency) pursuant to applicable state or federal law.
(d) In the Holders within five (5) Business Days event that any material change in any federal, state or local law, statute, operating rule or regulation, or any material change in any operating rule or regulation of receipt); provided that Visa makes the Collateral Manager continued performance of this Agreement under the then current terms and conditions unduly burdensome, then either party shall have the right to resign immediately terminate this Agreement upon 90 days advance written notice. Such written notice shall include a detailed explanation and evidence of the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation burden imposed as result of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedchange.
(e) A Majority of In the Controlling Class will nominate a successor Collateral Manager event that meets the criteria any representation set forth in clause (d) above (Paragraph 9 of this Agreement shall prove to be materially untrue, either party shall have the right to immediately terminate this Agreement and all of its obligations contained herein by notice to the other than subclause (v) thereof) following the notice party, except as to payments of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee fees for Activated Accounts as set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such successionParagraph 5.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Carrier Agreement (Cybersentry Inc)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Notes, the termination of the Indenture in accordance with its terms and the redemption of the Preferred Shares in accordance with the Issuer Charter; (ii) the liquidation of the Assets Collateral and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, Noteholders and the satisfaction and discharge of the Indenture in accordance with its terms or Preferred Shareholders; (iii) the early liquidation of the Pre-Closing Collateral in the event that it is determined that a Capital Markets Transaction will not occur; or (iv) the termination of this Agreement in accordance with Section 12(bsubsection (b), (c), (d), ) or (e) or (f) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only Notwithstanding any other provision hereof to clause (c) belowthe contrary, this Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer Issuer, the Insurer (or such shorter notice so long as it is acceptable to the IssuerControlling Party) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of Rating Agencies; provided, however, that no such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law termination or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed agreed in writing to assume all of the Collateral Manager’s duties and obligations pursuant to this Agreement, and the Issuer shall use its best efforts to appoint a successor Collateral Manager to assume such duties and obligations.
(c) This Agreement may be terminated at any time by the Issuer, and the Issuer may remove the Collateral Manager, upon 90 days’ prior written notice to the Collateral Manager (with a copy to the Insurer). The Issuer agrees that prior to the delivery by it of a notice of termination pursuant to this subsection (c), it shall obtain the consent to such termination from the Holders of at least 66 2/3% of the Aggregate Outstanding Amount of each Class of Notes and the Holders of at least 66 2/3% of the outstanding Preferred Shares, voting separately (excluding, at the time of such vote, such Notes or Preferred Shares held by the Collateral Manager or its affiliates, but only to the extent that the voting rights relating to such Securities are controlled by the Collateral Manager or one or more of its affiliates) and, acting reasonably and in good faith, consult with the Trustee and the Collateral Manager in relation to such termination. Notwithstanding the foregoing, no termination pursuant to this subsection (c) shall be effective until the date as of which a successor Collateral Manager shall have agreed in writing (an “Instrument to assume all of Acceptance”)the Collateral Manager’s duties and obligations pursuant to this Agreement.
(d) Promptly after If the Class A Overcollateralization Ratio is less than 102%, then the Holders of at least a Majority of the Controlling Class, voting collectively, may terminate this Agreement at any time, upon 30 days’ prior written notice of any removal under Section 14 or any resignation of to the Collateral Manager that is to take place while any and the Issuer. For purposes of this subsection (d), in determining whether the Holders of the requisite Aggregate Outstanding Amount of Notes or number of Preferred Shares have given such demand, authorization or direction, Notes and Preferred Shares owned by the Collateral Manager or any Affiliate thereof shall be disregarded and deemed not to be outstanding, but only to the extent that the voting rights relating to such Securities are Outstandingcontrolled by the Collateral Manager or one or more of its affiliates. For purposes of this subsection (d), the Issuer shall transmit or cause Class A Overcollateralization Ratio specified in the Trustee to transmit copies of such notice most recent Monthly Report delivered pursuant to the Holders and each Rating Agency and Indenture shall appoint be conclusive. Notwithstanding the foregoing, no termination pursuant to this subsection (d) shall be effective until the date as of which a successor Collateral Manager shall have agreed in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity writing to assume all of the responsibilities, Collateral Manager’s duties and obligations of pursuant to this Agreement.
(e) This Agreement shall be automatically terminated in the Collateral Manager hereunder and under event that the applicable terms of the IndentureAdministrator, (iii) has agreed to coordinate in consultation with the replaced Collateral Manager regarding communications with the Rating AgenciesBoard of Directors, (iv) does not cause or result determines in good faith that the Issuer becoming, or require the Co-Issuer or the pool of Assets Collateral has become required to be registered as, register as an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority provisions of the Controlling Class will nominate a successor Investment Company Act by virtue of any action taken by the Collateral Manager that meets Manager, and the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of Issuer notifies the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretothereof.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause Sections 2(j)(i), 8(b), 8(c), 10, 12(f) and 15 of this Agreement, which provisions shall survive the termination of this Agreement.
(hg) belowUpon any removal or resignation of the Collateral Manager while any of the Notes or Preferred Shares are Outstanding, the Issuer shall appoint as successor Collateral Manager any established institution which (i) has been nominated by the Insurer (so long as it is the Controlling Party), (ii) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (iii) is legally qualified and has the capacity to act as Collateral Manager hereunder, as successor to the Collateral Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iv) shall not cause the Issuer or the Co-Issuer or the pool of Collateral to become required to register under the provisions of the Investment Company Act and (v) with respect to which Rating Agency Confirmation is received. Any successor Collateral Manager must be appointed by the Issuer and not rejected by any of the Holders of more than 33 1/3% of the Aggregate Outstanding Amount of the Class A Notes (collectively), the Holders of more than 33 1/3% of the Aggregate Outstanding Amount of the Class B Notes (collectively) or the Holders of more than 33 1/3% by number of the outstanding Preferred Shares within 20 days of the issuance of notice of a vote regarding the successor Collateral Manager to the Holders of the Securities; provided, that such rejection shall not be unreasonable. For purposes of this paragraph, in determining whether the Holders of the requisite Aggregate Outstanding Amount of Notes or number of Preferred Shares have given such demand, authorization or direction, Notes and Preferred Shares owned by the Collateral Manager or any Affiliate thereof shall not be disregarded and shall be deemed to be outstanding. Such successor Collateral Manager must be ready and able to assume the duties of the Collateral Manager within 40 days after the date of such notice of resignation or removal of the Collateral Manager. If no successor Collateral Manager shall have been appointed or an instrument of acceptance by a successor Collateral Manager shall not have been delivered to the Collateral Manager within 360 days after the date of notice of resignation or removal of the Collateral Manager, the Insurer (so long as it is the Controlling Party) shall have the right to appoint a successor Collateral Manager, subject only to the requirements of the first paragraph of this subsection (g). In the event of a removal of the Collateral Manager, if no successor Collateral Manager shall have been appointed or an instrument of acceptance by a successor Collateral Manager shall not have been delivered to the Collateral Manager (a) within 20 days after approval of the successor Collateral Manager by the Issuer, and the issuance of notice of a vote regarding the successor Collateral Manager to the Holders of the Class A Notes, the Class B Notes and the Preferred Shares, or (b) within 40 days after the date of notice of removal of the Collateral Manager, the removed Collateral Manager (subject to the prior written consent of the Insurer (so long as it is the Controlling Party)), or the Insurer (so long as it is the Controlling Party) may petition any court of competent jurisdiction for the appointment of a successor Collateral Manager without the approval of the Holders of the Class A Notes, the Class B Notes and the Preferred Shares. In addition, if no successor Collateral Manager shall have been appointed or an instrument of acceptance by a successor Collateral Manager shall not have been delivered to the Collateral Manager within 405 days after the date of notice of removal of the Collateral Manager, the removed Collateral Manager (without the prior written consent of the Insurer) may petition any court of competent jurisdiction for the appointment of a successor Collateral Manager without the approval of the Holders of the Securities or the Insurer. In the event of a resignation by the Collateral Manager, if no successor Collateral Manager shall have been appointed or an instrument of acceptance by a successor Collateral Manager shall not have been delivered to the Collateral Manager within 120 days after the date of notice of resignation by the Collateral Manager, the resigned Collateral Manager (without the prior written consent of the Insurer) or the Insurer (so long as it is the Controlling Party) may petition any court of competent jurisdiction for the appointment of a successor Collateral Manager without the approval of the Holders of the Securities. Until a successor Collateral Manager shall have been appointed, the Collateral Manager shall comply with the trading restrictions set forth in Section 12.1(k) of the Indenture. In connection with such appointment and assumption and subject to the provisions of the Indenture, the Issuer may make such arrangements for the compensation of such successor as the Issuer and such successor shall agree; provided, however, that, except with respect to the amounts of the Senior Collateral Management Fee and the Subordinated Collateral Management Fee as expressly provided in Section 8(a), no compensation payable to such successor from payments on the Collateral shall be greater than that paid to the Collateral Manager under this Agreement without the prior written consent of the Insurer (so long as it is the Controlling Party) and the Holders of a Majority of the Aggregate Outstanding Amount of the Notes and the Holders of a Majority by number of the outstanding Preferred Shares (excluding, at the time of such vote, such Notes or Preferred Shares held by the Collateral Manager or its affiliates, but only to the extent that the voting rights relating to such Securities are controlled by the Collateral Manager or one or more of its affiliates), voting separately. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer or, 7 to the extent so provided in the Indenture, by the Trustee, the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer or, to the extent so provided in the Indenture, the Trustee may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(f) above). Upon the later of (i) the expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable and (ii) the time that the successor Collateral Manager has otherwise been appointed and is willing to assume the rights and obligations of the Collateral Manager hereunder, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Collateral or the Pre-Closing Collateral or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor Collateral Manager. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (GSC Investment LLC)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the Secured Debt and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to Issuer, the Issuer) and the Collateral Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities or Secured Debt are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Collateral Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net basis.
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Xxxxxxxxxx Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities and Secured Debt.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities and Secured Debt, including Collateral Manager Securities.
(g) The Issuer, the Collateral Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon the later of the expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Technology Finance Corp. II)
Term Termination. (a) This Agreement The Employment Period shall commence as of upon the date first set forth out above and shall continue until terminated in force until accordance with the first provisions of the following occurs: this agreement; provided, that, (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersEmployment Period shall terminate immediately upon Executive’s death, resignation (which must be accompanied by at least sixty (60) days’ prior written notice) or Disability, (ii) the payment in full of Employment Period may be terminated by the NotesCompany at any time prior to such date for Cause or without Cause (any such termination without Cause must be accompanied by at least sixty (60) days’ prior written notice, and the satisfaction Company may require Executive not to perform his duties hereunder or enter Company premises during the period prior to the date that any such termination without Cause becomes effective), and discharge of the Indenture in accordance with its terms or (iii) the early Employment Period may be terminated by Executive at any time for Good Reason or for any reason (with at least sixty (60) days’ prior written notice); provided further that, in the event the Company wishes to terminate the Employment Period for Cause solely based on events described in clauses (iii) and/or (ix) of the definition of “Cause”, the Company shall provide Executive with written notice of such intention and such termination shall not become effective until the sixth (6th) day after such notice is delivered to Executive (provided that the Company shall be permitted to withdraw such notice at any time prior to such sixth (6th) day, and provided further that the Company may require Executive not to perform his duties hereunder or enter Company premises during the period prior to the date that such termination becomes effective); provided further that, in the event Executive wishes to terminate the Employment Period for Good Reason based on events described in clause (ii) of the definition of “Good Reason”, Executive shall provide the Company with written notice of such intention and such termination shall not become effective until the sixth (6th) day after such notice is delivered to the Company (provided that Executive shall be permitted to withdraw such notice at any time prior to such sixth (6th) day). At the end of the initial term, this Agreement in accordance with Section 12(b)shall automatically renew for an additional one (1) year terms, unless either party provides notice of non-renewal at least sixty (c), (d), (e60) days prior to the expiration of such initial term or (f) or Section 14any renewal term.
(b) Subject only to clause (c) belowUpon a termination of the Employment Period, the Collateral Manager may resign, upon 60 days’ other than a termination prior written notice to the Issuer end of the Employment Period by the Company without Cause or by the Executive within thirty (30) days of the occurrence of Good Reason, all future compensation or bonuses to which Executive would otherwise be entitled and all future benefits for which Executive would otherwise be eligible shall cease and terminate as of the date of such shorter notice as is acceptable termination; provided, that Executive shall receive any salary earned through the date of termination, payable pursuant to the Issuer) Company’s general payroll practices as may be in effect from time to time and the Trustee (subject to deduction and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in withholding authorized or required by applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulationlaw.
(c) No resignation or removal Upon a termination of Executive’s employment prior to the end of the Collateral Manager Employment Period by the Company without Cause or by Executive within thirty (30) days of the occurrence of Good Reason, the Company shall pay and/or provide Executive, in consideration of Executive’s continuing obligations hereunder after such termination (including, without limitation, Executive’s non-competition obligations), an amount equal to Executive’s then current Base Salary for a period of (3) months, payable bi-weekly and otherwise pursuant to this Agreement the Company’s regular payroll policies. The payments described above shall be effective until subject to Executive’s execution and delivery to the Company within 30 days of the date as of which termination an executed Separation Agreement and General Release in a successor Collateral Manager shall have been appointed and form approved and has accepted and assumed all of by the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Company.
(d) Promptly after notice The parties agree that the obligations created in Sections 5, 6, 7, 11, 14, and 15 of any removal under Section 14 or any resignation this Agreement will survive the termination of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance Executive’s employment with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedCompany.
(e) A Majority Executive expressly covenants and agrees that for a period two years following termination, Executive will not, and Executive will cause Executive’s affiliates not to (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Controlling Class will nominate Company or any of its affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its affiliates any person who or which is a successor Collateral Manager that meets customer of any of such entities during the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager period during which Executive is employed by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoCompany.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Term Termination. (a) 12.1 This Agreement shall commence as come into full force and effect on the Effective Date and each Product Schedule shall come into full force and effect on the Product Schedule Effective Date. Subject to the provisions for early termination set out herein, this Agreement or each Product Schedule individually shall continue until terminated by AstraZeneca in writing with six (6) months notice period.
12.2 Lonza Biologics may terminate the relevant Product Schedule forthwith by notice in writing to AstraZeneca upon the occurrence of AstraZeneca committing a material breach of Product Schedule (which shall include a breach of the date first warranties set forth above out in this Agreement) which in the case of a breach capable of remedy is not remedied within [***] ([***]) [***] of the receipt by AstraZeneca of notice identifying the breach and shall continue requiring its remedy
12.3 AstraZeneca may terminate the Agreement or the relevant Product Schedule forthwith by notice in force until writing to Lonza Biologics upon the first occurrence of any of the following occurs: (i) the final liquidation events:
12.3.1 if Lonza Biologics commits a material breach of the Assets and the final distribution Agreement (which shall include a breach of the proceeds warranties set out in this Agreement) which in the case of such liquidation to the Noteholders, a breach capable of remedy is not remedied within [***] (ii[***]) the payment in full [***] of the Notes, receipt by the other of notice identifying the breach and requiring its remedy; or
12.3.2 if Lonza Biologics ceases for any reason to carry on business or compounds with or convenes a meeting of its creditors or has a receiver or manager appointed in respect of all or any part of its assets or is the satisfaction and discharge subject of the Indenture in accordance with its terms an application for an administration order or of any proposal for a voluntary arrangement or enters into liquidation (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (ewhether compulsorily or voluntarily) or (f) undergoes any analogous act or Section 14proceedings under foreign law.
12.4 If it becomes apparent to either Loom Biologics or AstraZeneca at any stage in the provision of Services that it will not be possible to complete the Services for scientific or technical reasons, a [***] (b[***]) Subject only [***] period shall be allowed for good faith discussion and attempts to clause (c) belowresolve such problems. If such problems are not resolved within such period, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) Lonza Biologics and the Trustee (and the Issuer AstraZeneca shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall each have the right to resign immediately upon terminate the effectiveness Work Programme in the relevant Product Schedule forthwith by notice in writing. In the event of such termination, AstraZeneca shall pay to Lonza Biologics a termination sum calculated by reference to all the Services performed by Lonza Biologics prior to such termination (including a pro rata proportion of the Price for any material change stage of the Services which is in applicable law or regulations which renders process at the performance date of termination including any cGMP manufacturing stage) and all expenses reasonably incurred and specified by Lonza Biologics in giving effect to such termination, including the Collateral Manager costs of its duties hereunder or terminating any commitments entered into under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12Agreement, such termination shall be without any further liability sum not to exceed the amount payable under 12.5 if terminated according to Section 12.5, or obligation of either party to the other, except as provided in clause (h) belowPrice whichever is lowest.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as of Bank may terminate Professional’s participation in the date first set forth above Program, and shall continue in force until the first of the following occurs: this Agreement, at any time, if (i) the final liquidation Professional breaches this Agreement or any agreement between Professional and an affiliate of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersBank, (ii) the payment in full Bank determines that (x) Professional’s financial condition has deteriorated or Professional otherwise ceases to meet Bank’s Professional underwriting criteria, or (y) there are an excessive number of the Notesdisputes between Professional and Qualified Cardholders, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) Professional is no longer a participant in the early termination CardCredit provider network or Bank’s agreement with CareCredit is terminated, (iv) Professional undergoes a change of control, (v) Professional or any person owning or controlling Professional’s business is or becomes listed in the MATCH file (Member Alert to Control High-Risk merchants) maintained by Visa and MasterCard, (vi) any Association notifies Bank that it is no longer willing to accept Professional’s Charge Transaction Data, or (vii) Bank determines that circumstances relating to Professional have or could create harm to or loss of goodwill to an Association or Bank. Bank may also terminate this Agreement or Professional’s participation in accordance with Section 12(b)the Program, without cause upon fifteen (c), 15) days written notice to Professional. Professional may terminate this Agreement without cause on fifteen (d), (e15) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to Bank. This Agreement will automatically terminate if a petition in bankruptcy is filed involving Professional. Professional acknowledges that if Bank terminates this Agreement for cause, Bank may place Professional on the Issuer MATCH File (or such shorter notice as is acceptable to the Issuerany similar or successor reporting service) and the Trustee (Professional shall indemnify and the Issuer shall direct the Trustee to distribute hold Bank harmless as a copy result of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulationplacement.
(cb) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager Notwithstanding termination by either party (i) has demonstrated an ability the terms of this Agreement will continue to professionally apply to any Accounts established or Qualified Card transactions occurring, prior to the effective termination date (by way of example, settlement, returns, submission of credits, and competently perform duties similar to those imposed upon the Collateral Manager hereunderprocessing of chargebacks), (ii) is legally qualified without limiting the provisions of clause (i), the provisions of Sections 3(d), (3g), 5, 6, 7, 8(d), 9, 11, 12, 13(d) and has the capacity to assume all of the responsibilities14 will survive such termination, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating AgenciesBank may use Professional’s name and marks for purposes of liquidating, (iv) does not cause administering or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedcollecting Accounts.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Carecredit Card Acceptance Agreement
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Debt and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and to the Issuer, the Collateral Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under the Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Collateral Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Collateral Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Capital Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full or redemption in whole of the Debt and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Holders; or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fc) or Section 1413. In the absence of the circumstances described in clause (i) or (ii) of the preceding sentence, no termination of this Agreement or any removal or resignation of the Collateral Manager shall be effective until written acceptance of appointment by a successor collateral manager and the effective assumption by such successor collateral manager of the duties of the Collateral Manager have been received. The Collateral Manager hereby acknowledges and agrees that the Collateral Manager shall continue to perform its obligations hereunder and under the Indenture in the manner provided herein and therein until the payment in full or redemption in whole of the Debt and the termination of the Indenture in accordance with its terms unless any of the events described in clause (ii) or (iii) of the second preceding sentence occur prior thereto.
(b) Subject only Notwithstanding any other provision hereof to clause (c) belowthe contrary, this Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer and the Collateral Trustee (or such shorter notice period as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which that renders the performance by the Collateral Manager of its duties hereunder under this Agreement or under the Indenture to be a violation of such law or regulation). The Issuer shall use its best efforts to appoint a successor Collateral Manager to assume such duties and obligations.
(c) No resignation or removal of the Collateral Manager pursuant to this This Agreement shall be effective until automatically terminated in the date as event that the Board of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of Managers determines in good faith that the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 Issuer or any resignation portion of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets has become required to be registered as, register as an investment company under the 1940 provisions of the Investment Company Act by virtue of any action taken by the Collateral Manager (and (v) with respect to which such requirement has not been eliminated after a period of 45 days), and the Global Rating Agency Condition has been satisfiedIssuer notifies the Collateral Manager thereof.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 2(h)(i), 6, 8(c), 10, 14, 15 and 33, which provisions shall survive the termination of this Agreement.
(e) Within 30 days of the resignation, termination or removal of the Collateral Manager pursuant to Section 12 or 13 while any of the Debt is outstanding, a Majority of the Preferred Interests shall propose an Eligible Successor Collateral Manager to the Issuer by delivering notice thereof to the Collateral Trustee, the Collateral Manager and the holders of the Controlling Class. A Majority of the Controlling Class will either (i) consent to such successor collateral manager, or (ii) propose an Eligible Successor Collateral Manager by delivering notice of such proposed successor to the Collateral Trustee, the Collateral Manager and the holders of | the Preferred Interests within 30 days of receipt of notice from a Majority of the Preferred Interests. If such notice is received by the Collateral Trustee within such time period, a Majority of the Preferred Interests will have 30 days from receipt of such notice to (i) object to such successor collateral manager, and (ii) propose an Eligible Successor Collateral Manager by delivery of notice of such objection and proposed successor to the Collateral Trustee, the Collateral Manager and the holders of the Controlling Class. If no such notice is received by the Collateral Trustee within such time period, such proposed successor collateral manager shall be appointed Collateral Manager. If, however, such notice is received by the Collateral Trustee within such time period, a Majority of the Controlling Class shall have 30 days from receipt of such notice to either (i) consent to such successor collateral manager, or (ii) propose an Eligible Successor Collateral Manager by delivery of notice of such objection and proposed successor to the Collateral Trustee, the Collateral Manager and the holders of the Preferred Interests. If such notice is received by the Collateral Trustee within such time period, a Majority of the Preferred Interests shall have 30 days from receipt of such notice to object to such successor collateral by delivery of notice of such objection to the Collateral Trustee, the Collateral Manager and the holders of the Controlling Class. If such notice is received by the Collateral Trustee within such time period, a Majority of the Controlling Class, a Majority of the Preferred Interests or the resigning or removed collateral manager may petition any court of competent jurisdiction for the appointment of a successor collateral manager without the approval of any holders. Any notice to holders contemplated above may be effected by delivering such notice to the Collateral Trustee for delivery to the holders of the appropriate Class of Debt in accordance with the terms of the Indenture.
(f) Notwithstanding the foregoing, if no successor collateral manager shall have been appointed by the Issuer or an instrument of acceptance by a successor collateral manager shall not been delivered as provided in clause (hg) belowbelow within 90 days following the date of resignation, termination or removal of the Collateral Manager (unless the expiration of such 90-day period is caused by delays in satisfying the applicable Rating Agency Confirmation, in which case such Rating Agency Confirmation must be satisfied no later than 30 days after the expiration of such 90-day period), any of the resigning or removed Xxxxxxxxxx Manager, the Issuer or any Holder may petition any court of competent jurisdiction for the appointment of a successor collateral manager, in either such case, whose appointment shall become effective after such successor has accepted its appointment without the approval of any holder of Debt.
(g) An “Eligible Successor Collateral Manager” shall be an institution that (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager, (ii) is legally qualified and has the capacity to act as collateral manager and assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) by its appointment will not cause or result in the Issuer or any portion of the Assets becoming required to register under the provisions of the Investment Company Act and (iv) has accepted its appointment in writing and has agreed to perform all duties of the Collateral Manager pursuant to this Agreement and any letter agreement that the Collateral Manager executed in connection with its duties hereunder. |
(h) Upon the acceptance by a successor Collateral Manager of such appointment, all rights and obligations of the Collateral Manager under this Agreement shall terminate, except as provided in Sections 2(h)(i), 6, 7 (8(c), 10, 14(a), 15 and 33. Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1413, as applicable, and upon the acceptance by a successor Collateral Manager of such appointment, all authority and power of the Collateral Manager under this Agreement and the Indenture, whether with respect to the Assets or otherwise, shall automatically and without further action by any Person pass to and be vested in the successor Collateral Manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Carlyle Secured Lending, Inc.)
Term Termination. (a52) This Until this Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture is terminated in accordance with its terms terms, this Agreement shall be in effect until the date that is one (1) year after the date hereof, and thereafter on each anniversary of such date deemed renewed automatically each year for an additional one-year period unless (i) a majority consisting of at least two-thirds of the Independent Directors or a simple majority of the holders of outstanding shares of Common Stock of the Company, agree that there has been unsatisfactory performance that is materially detrimental to the Company or (iiiii) a simple majority of the early termination Independent Directors agree that the Management Fee payable to the Manager is unfair; provided, that the Company shall not have the right to terminate this Agreement under clause (ii) foregoing if the Manager agrees to continue to provide the services under this Agreement at a fee that the Independent Directors have determined to be fair. If the Company elects not to renew this Agreement at the expiration of any such one-year (or partial-year term in the case of the initial term hereof) term as set forth above, the Company shall deliver to the Manager prior written notice (the "Termination Notice") of the Company's intention not to renew this Agreement based upon the terms set forth in this Section 13(a) of this Agreement in accordance with Section 12(bnot less than 60 days prior to the expiration of the then existing term. If the Company so elects not to renew this Agreement, the Company shall designate the date (the "Effective Termination Date"), (c)not less than 60 days from the date of the notice, (d)on which the Manager shall cease to provide services under this Agreement and this Agreement shall terminate on such date; provided, (e) or (f) or Section 14.
(b) Subject only however, that in the event that such Termination Notice is given in connection with a determination that the compensation payable to clause (c) belowthe Manager is unfair, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately renegotiate the Management Fee by delivering to the Company, no fewer than forty-five (45) days prior to the prospective Effective Termination Date, written notice (any such notice, a "Notice of Proposal to Negotiate") of its intention to renegotiate its compensation under this Agreement. Thereupon, the Company and the Manager shall endeavor to negotiate in good faith the revised compensation payable to the Manager under this Agreement. Provided that the Manager and the Company agree to a revised Management Fee (or other compensation structure) within 45 days following the receipt of the Notice of Proposal to Negotiate, the Termination Notice shall be deemed of no force and effect and this Agreement shall continue in full force and effect on the terms stated in this Agreement, except that the Management Fee shall be the revised Management Fee (or other compensation structure) then agreed upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral parties to this Agreement. The Company and the Manager of its duties hereunder or under agree to execute and deliver an amendment to this Agreement setting forth such revised Management Fee promptly upon reaching an agreement regarding same. In the Indenture event that the Company and the Manager are unable to agree to a revised Management Fee during such 30 day period, this Agreement shall terminate, such termination to be a violation effective on the date which is the later of (A) ten (10) days following the end of such law or regulation30 day period and (B) the Effective Termination Date originally set forth in the Termination Notice.
(c53) No resignation or removal of In the Collateral Manager pursuant to event that this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager terminated in accordance with the procedures set forth in clause provisions of Section 13(a) of this Agreement, the Company shall pay to the Manager, on the date on which such termination is effective, a termination fee (ethe "Termination Fee") below; provided that such successor Collateral Manager (i) has demonstrated an ability equal to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all amount of the responsibilities, duties and obligations Management Fee earned by the Manager during the period consisting of the Collateral Manager hereunder and under the applicable terms twelve (12) full, consecutive calendar months immediately preceding such termination. The obligation of the Indenture, (iii) has agreed Company to coordinate with pay the replaced Collateral Manager regarding communications with Termination Fee shall survive the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool termination of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedthis Agreement.
(e54) A Majority No later than sixty (60) days prior to the anniversary date of this Agreement of any year during the Term, the Manager may deliver written notice to the Company informing it of the Controlling Class will nominate a successor Collateral Manager that meets Manager's intention not to renew the criteria set forth in clause (d) above (other than subclause (v) thereof) Term, whereupon the Term of this Agreement shall not be renewed and extended and this Agreement shall terminate effective on the anniversary of the Closing Date next following the notice delivery of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretonotice.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g55) If this Agreement is terminated pursuant to this Section 1213, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hSection 13(b) below.
(h) Sections 6and Section 16 of this Agreement. In addition, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 Section 11 of this Agreement shall survive any termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 1 contract
Samples: Management and Advisory Agreement (Newcastle Investment Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholdersholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that that, the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are OutstandingManager, the Issuer shall transmit copies of notice of such resignation or cause removal to the Trustee to transmit copies (which shall forward a copy of such notice to the Holders holders) and each the Rating Agency Agencies and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becomingto become, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (iv) does not cause the Issuer to become subject to U.S. federal income tax on a net basis, (v) with respect to which the Global Rating Agency Condition has been satisfiedidentified in a prior written notice provided to the Rating Agencies, and (vi) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Controlling Class will Subordinated Notes fails to nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the collateral manager within 30 days of initial notice of the resignation or removal of the Collateral Manager and such or (ii) a Majority of the Controlling Class does not approve the proposed successor will be collateral manager nominated by the holders of the Subordinated Notes within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 30 days of the failure described in clause (i) or (ii) of this sentence, as the case may be, nominate a successor collateral manager that meets the criteria set forth in Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor collateral manager is appointed within 90 days (or, in the successor event of a change in applicable law or regulation which renders the performance by the Collateral Manager by of its duties under this Agreement or the Issuer; provided that Indenture to be a violation of such law or regulation, within 30 days) following the Global Rating Agency Condition termination or resignation of the Collateral Manager, any of the resigning or removed Collateral Manager, a Majority of the Subordinated Notes (disregarding Collateral Manager Notes, unless 100% of the Subordinated Notes are Collateral Manager Notes) and a Majority of the Controlling Class (disregarding Collateral Manager Notes) shall have the right to petition a court of competent jurisdiction to appoint a successor collateral manager, in either such case whose appointment shall become effective after such successor has been satisfied with respect theretoaccepted its appointment and without the consent of any holder or beneficial owner of any Note.
(f) The successor Collateral Manager collateral manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor collateral manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the holders of each Class of Notes voting separately by Class, including Collateral Manager Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Managercollateral manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity Person pass to and be vested in the successor Collateral Managercollateral manager. The Issuer, the Trustee and the successor Collateral Manager collateral manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hi) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
(i) In connection with any vote under this Agreement, in determining whether the holders of the requisite Aggregate Outstanding Amount have given any request, demand, authorization, direction, notice, consent or waiver or made any proposal, if Collateral Manager Notes are disregarded and deemed not to be Outstanding in connection with such vote and a Class of Notes entitled to vote is comprised entirely of Collateral Manager Notes, then the most senior Class of Notes that is not comprised entirely of Collateral Manager Notes shall be entitled to exercise the specified voting rights, disregarding any Collateral Manager Notes, in lieu of such other Class of Notes.
Appears in 1 contract
Samples: Collateral Management Agreement (MidCap Financial Investment Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets Collateral and the final distribution of the proceeds of such liquidation to the NoteholdersSecured Parties, (ii) the payment in full of the NotesObligations, and the satisfaction and discharge of the Indenture Credit Agreement in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer Borrower (or such shorter notice as is acceptable to the Issuer) Borrower and the Trustee (Controlling Parties), the Controlling Parties, the Administrative Agent and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Collateral Agent; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture Credit Agreement to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Replacement Collateral Manager (as defined below) shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any prior to the date on which all of the Notes are OutstandingObligations (other than unasserted contingent obligations) have been paid in full, the Issuer Borrower shall transmit or cause the Trustee to transmit copies of such notice to the Holders Collateral Agent and the Administrative Agent (which shall forward a copy of such notice to the Lenders) and each Rating Agency then rating any of the Loans and shall appoint a successor Collateral Manager in accordance with upon receipt of such notice, the procedures set forth in clause (e) below; provided that such successor Collateral Manager Administrative Agent may, (i) has demonstrated appoint an ability to professionally and competently perform duties similar to those imposed upon Approved Replacement Collateral Manager as the Collateral Manager hereunderunder this Agreement and, (ii) is legally qualified and has the capacity to assume in such case, all of the responsibilitiesauthority, duties power, rights and obligations of the Collateral Manager hereunder shall pass to and under be vested in such Approved Replacement Collateral Manager or (ii) with the applicable terms prior written consent of the IndentureBorrower, (iii) has agreed to coordinate with the replaced appoint a new Collateral Manager regarding communications with that is not an Approved Replacement Manager (in each case, the Rating Agencies“Replacement Collateral Manager”), (iv) does not cause or result in which appointment shall take effect upon the Issuer becomingReplacement Collateral Manager accepting such appointment by delivery an Instrument of Acceptance to the Borrower, or require the pool of Assets to be registered asCollateral Agent, an investment company under the 1940 Act Administrative Agent and (v) with respect to which the Global Rating Agency Condition has been satisfiedremoved Collateral Manager.
(e) A Majority of In the Controlling Class will nominate event that a successor Replacement Collateral Manager that meets has not accepted its appointment within 90 days (or, in the criteria set forth event of a change in clause (d) above (other than subclause (v) thereofapplicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Credit Agreement to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, the Subordinated Noteholders and such proposed successor will be appointed the successor Controlling Parties shall have the right to petition a court of competent jurisdiction to appoint any established financial institution, having a net worth of not less than United States $50,000,000 and whose regular business includes the servicing of assets similar to the Collateral as the Replacement Collateral Manager by hereunder, in any such case, whose appointment shall become effective after such Replacement Collateral Manager has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any Lender or any Subordinated Noteholder.
(f) The successor Replacement Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such Replacement Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Lenders and the Subordinated Noteholders, including Borrower Affiliated Lenders. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Replacement Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets Collateral or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Replacement Collateral ManagerManager and the Replacement Collateral Manager shall be the Collateral Manager hereunder. The IssuerBorrower, the Trustee Administrative Agent, the Collateral Agent and the successor Replacement Collateral Manager shall take such action (or the Borrower shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g12(h), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital Private Credit Fund)
Term Termination. (a) This Agreement shall commence as of may be terminated by the Issuer by an instrument in writing delivered or mailed, postage prepaid, to the Custodian and the Indenture Trustee (with a copy to the Rating Agencies), such termination to take effect on the date first set forth above of such delivery or receipt by the Custodian; provided, however, that until a successor custodian shall have been appointed by the Issuer (which successor Custodian shall satisfy the Rating Agency Condition), and the Custodian shall have transferred the Financial Assets and other Property as provided below, this Agreement shall continue in full force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14effect.
(b) Subject only to clause (c) belowThis Agreement may be terminated by the Custodian by an instrument in writing delivered or mailed, the Collateral Manager may resignpostage prepaid, upon 60 days’ prior written notice to the Issuer and the Indenture Trustee (or such shorter notice as is acceptable with a copy to the IssuerRating Agencies), such termination to take effect not sooner than (i) thirty (30) days after the date of such delivery or mailing if Deutsche Bank Trust Company Americas is being replaced as Indenture Trustee under the Indenture, or (ii) ninety (90) days after the date of such delivery or mailing; provided, however, that until a successor custodian shall have been appointed, which successor Custodian shall satisfy the Rating Agency Condition, and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager Custodian shall have transferred the right Property as provided below to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to successor custodian, this Agreement shall be effective until continue in full force and effect. If such successor custodian is not appointed by the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all Issuer within ninety (90) days of the Collateral Manager’s duties and obligations pursuant to delivery by the Custodian of its notice of termination of this Agreement Agreement, the Indenture Trustee acting alone shall designate such successor custodian, in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is delivered to take place while any of the Notes are Outstanding, the Issuer shall transmit and the Custodian, selected from among the ten largest commercial banks (in terms of deposit) in New York City or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all directions of the responsibilities, duties and obligations a final order or judgment of the Collateral Manager hereunder and under the applicable terms a court of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate competent jurisdiction. If a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will custodian shall be appointed the successor Collateral Manager by the Issuer; as herein provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any upon termination of this Agreement pursuant Agreement, the Custodian shall transfer all Property to this Section 12 the designated account of the successor custodian physically or Section 14in the appropriate book-entry system, if feasible, and thereupon the Custodian shall be discharged from any and all further responsibility hereunder.
Appears in 1 contract
Samples: Custody and Control Agreement (GE Capital Credit Card Master Note Trust)
Term Termination. Subject to the Customer’s compliance with the terms and conditions of the Master Subscription Agreement, the Master Subscription Agreement will be in effect for as long as the Customer is licensed to use any Product pursuant to an Order Form (the “Term”); and the term for the use of each Product will be set forth in the applicable Order Form for such Product (each, a “Product Term”). Each party will have the right to terminate the Master Subscription Agreement if the other party breaches any material term of the Master Subscription Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Each party will have the right to terminate an individual Order Form if the other party breaches any material term of such Order Form and fails to cure such breach within thirty (30) days after written notice thereof. For the avoidance of doubt, termination of a Product Term shall not affect the Product Term of any other Order Form applicable to other Products that the Customer has purchased. For clarification, upon termination of any Order Form before end of the Product Term: (a) This Agreement Illumio will have no obligation to refund any Fees or other amounts received from the Customer during the Product Term; and (b) the Customer shall commence as remain obligated to pay all Fees payable under an Order Form for the full Product Term. Upon any termination or expiration of the date first set forth above Master Subscription Agreement or any Order Form for any reason, all licenses granted to the Customer in the Master Subscription Agreement and shall continue in force until the first of the following occursall Order Forms will terminate immediately and: (i) the final liquidation Customer will (A) immediately cease use of the Assets Products, and (B) promptly return to Illumio the final distribution On-Premises Software and Documentation and all copies and portions thereof, in all forms and types of the proceeds of such liquidation to the Noteholders, media; (ii) each party will promptly destroy or return to the payment in full other party all Confidential Information of the Notes, other party in its possession or control; and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance Customer will provide Illumio with Section 12(b)an officer’s written certification, (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice certifying to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral ManagerCustomer’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance compliance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties foregoing. The rights and obligations of Illumio and the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth Customer contained in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager3, all authority and power of the Collateral Manager hereunder4, whether with respect to the Assets or otherwise5, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer6, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 8, 10, 11, 12, such termination shall be without any further liability or obligation of either party to the other13, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g)14, 15, 17, 21, 22, 23 16 and 25 shall 17 will survive any the expiration or termination of this Agreement pursuant to this Section 12 or Section 14the Master Subscription Agreement.
Appears in 1 contract
Samples: Master Subscription Agreement
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each Rating Agency (provided that, in the case of Fitch, only for so long as any Class A-1 Notes remain Outstanding) and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability ability, whether as an entity or by its principals or employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Subordinated Notes within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Subordinated Notes and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any holder or beneficial owner of any Note.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes voting separately by Class, including Collateral Manager Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g12(h), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (GOLUB CAPITAL INVESTMENT Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders of the Notes and the holders of the Interests, (ii) the payment in full of the Notes, Notes and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement with respect to the Collateral Manager in accordance with Section 12(b12(c), (c), (d), (ein connection with the resignation of such Collateral Manager pursuant to Section 12(b) or (f) or in connection with the removal of such Collateral Manager pursuant to Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, resign upon 60 ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to or termination of this Agreement with respect to such Collateral Manager in connection with such resignation or removal shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) or Section 12(e) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each Rating Agency (provided, however, in the case of Xxxxx’x, only for so long as any Class A Notes remain Outstanding) and shall appoint a successor Collateral Manager in accordance with Manager, at the procedures set forth in clause (e) below; provided that such successor Collateral Manager direction of a Majority of the Interests, which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Interests fails to nominate a successor within thirty (30) days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Interests within ten (10) days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within sixty (60) days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Interests approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within ninety (d90) above days (other than subclause or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within thirty (v30) thereofdays) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Interests and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in any such case whose appointment shall, subject to clause (f) below, become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any Holder of any Note or any holder of any Interest.
(f) The Any successor Collateral Manager shall be entitled agree, as condition precedent to such Collateral Management Fee set forth in Sections 8(b). Upon assuming the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power obligations of the Collateral Manager hereunder, whether with respect that, in the event the initial Collateral Manager determines at any time (based on advice of nationally recognized counsel experienced in such matters) that it is necessary or advisable under the applicable requirements under Section 15G of the Exchange Act of 1934 and the applicable rules and regulations thereunder (the “U.S. Risk Retention Requirements”) to transfer the Assets eligible horizontal residual interest retained by for purposes of the U.S. Retention Requirements (the “U.S. Retention Interest”) (or otherwise, shall automatically and without action by any person or entity pass cause the U.S. Retention Provider to and be vested in transfer the U.S. Retention Interest) to the successor Collateral Manager. The Issuer, the Trustee and the such successor Collateral Manager shall take acquire such action (or cause U.S. Retention Interest from the outgoing initial Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such successionand/or the U.S. Retention Provider on an arm’s-length basis.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each Rating Agency (provided that, in the case of Fitch, only for so long as any Class A Notes remain Outstanding) and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability ability, whether as an entity or by its principals or employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Subordinated Notes within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Subordinated Notes and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any holder or beneficial owner of any Note.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes voting separately by Class, including Collateral Manager Notes. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g12(h), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (GOLUB CAPITAL BDC, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and prior written notice to the Issuer, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or to be subject to U.S. federal, state or local income tax on a net basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Xxxxxxxxxx Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Credit Income Corp.)
Term Termination. (a) This Initially, this Agreement shall commence as be for the period commencing with the Effective Date and ending three months from the Effective Date (the “Term”). Thereafter, this Agreement shall be renewable for a term of three months and shall be automatically renewed for successive three month terms unless and until terminated by either Icon or the Purchaser on written notice given not less than 30 days prior to expiration of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.current Term..
(b) Subject only Notwithstanding anything to clause (c) belowthe contrary contained herein or in Annex A attached hereto, the Collateral Manager Purchaser may resignterminate any individual Icon Service on an Icon Service-by-Icon Service basis upon 30 days written notice, upon 60 days’ prior written notice identifying the particular Icon Service to the Issuer (or such shorter notice as is acceptable to the Issuer) be terminated and the Trustee (and the Issuer shall direct the Trustee to distribute a copy effective date of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulationtermination.
(c) No resignation or removal This Agreement may be terminated prior to the expiration of the Collateral Manager pursuant Term as set forth in Section 7(a) and (b), upon written notice as set forth below:
i. by mutual written consent of the parties hereto at any time;
ii. with respect to this Agreement shall be effective until Icon Services, by Icon, if the Purchaser fails to pay any invoice within 30 days following the date as when payment of which a successor Collateral Manager shall such invoice is due, unless the Purchaser is disputing such invoice in good faith or the parties have been appointed and approved and has accepted and assumed all of initiated the Collateral Manager’s duties and obligations pursuant to this Agreement dispute resolution procedures set forth in writing (an “Instrument of Acceptance”)Section 4.
(d) Promptly after notice The Purchaser and Icon each specifically agrees and acknowledges that all obligations of Icon to provide any removal under Section 14 or Icon Service shall immediately cease upon the termination of this Agreement, in each case, in the manner set forth herein. Upon the cessation of Icon’s obligation to provide any resignation of the Collateral Manager that is to take place while any of the Notes are OutstandingIcon Service, the Issuer Purchaser, shall transmit immediately cease using, directly or cause the Trustee to transmit copies of indirectly, such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedIcon Service.
(e) A Majority Upon termination of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods an Icon Service with respect to termination specified in this Section 12 which Icon holds books, records or in Section 14 and the acceptance files, including current or archived copies of its appointment hereunder computer files, owned by the successor Collateral ManagerPurchaser and used by Icon in connection with the provision of an Icon Service to the Purchaser, Icon will return to the Purchaser all authority of such books, records or files as soon as reasonably practicable; provided, however, that Icon may make a copy, at its expense and power with prior written consent of the Collateral Manager hereunderPurchaser, whether with respect to the Assets of such books, records or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such successionfiles for archival purposes only.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Asset Purchase Agreement (Truli Technologies, Inc.)
Term Termination. (a) This Agreement shall commence become effective as of the date first set forth above 2021 Refinancing Date and shall continue in force until the first of the following occurs: (i) the final payment in full of the Secured Notes, the termination of the Indenture in accordance with its terms and the payment in full of the Subordinated Notes; (ii) the liquidation of the Assets Collateral and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms ; or (iii) the early termination of this Agreement in accordance with this Section 12(b), (c), (d), (e) or (f) 12 or Section 1413.
(b) Subject only Notwithstanding any other provisions hereof to clause (c) belowthe contrary, the Collateral Investment Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer Issuer, the Rating Agencies and the Trustee (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided provided, however, that the Collateral Manager such resignation shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall not be effective until the date as of which a successor Collateral Investment Manager shall have has been appointed and approved in accordance with Section 12(e) and has accepted and assumed all the duties of the Collateral Manager’s successor Investment Manager hereunder. The Issuer will use commercially reasonable efforts to appoint a successor Investment Manager to assume such duties and obligations pursuant to this Agreement in writing obligations.
(an “Instrument of Acceptance”)c) [Reserved].
(d) Promptly after notice If this Agreement is terminated pursuant to this Section 12 or Section 13, such termination will be without any further liability or obligation of either party to the other, except as provided in Sections 8, 10, 14 and 23.
(e) Upon any removal under Section 14 or any resignation of the Collateral Investment Manager that is (in each case, whether pursuant to take place this Section 12 or pursuant to Section 13) while any of the Secured Notes or Subordinated Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager shall, as directed in accordance with the procedures set forth in clause (e) below; provided that such immediately succeeding paragraph, appoint as successor Collateral Investment Manager an institution which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Investment Manager hereunderhereunder (or that has been approved by a Majority of the Controlling Class), (ii) is legally qualified and has the capacity to assume act as Investment Manager hereunder, as successor to the Investment Manager under this Agreement in the assumption of all of the responsibilities, duties and obligations of the Collateral Investment Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed shall not cause the Issuer or the Co-Issuer or the pool of Collateral to coordinate with become required to register under the replaced Collateral Manager regarding communications with provisions of the Rating Agencies, Investment Company Act and (iv) does will not cause or result in the Issuer becoming, or require the pool of Assets to be registered astreated as engaged in a trade or business within the United States for U.S. federal income tax purposes. No termination or removal of the Investment Manager, an investment company under whether pursuant to this Section 12 or pursuant to Section 13 hereof, shall be effective until a successor has been appointed and approved pursuant to this Agreement, subject to and in accordance with this Section 12(e), and has agreed in writing to assume all of the 1940 Act Investment Manager’s duties and (v) obligations with respect to which the Global Rating Agency Condition has been satisfied.
period commencing with such appointment. Any successor Investment Manager must be appointed by the Issuer at the direction of (ea) A a Majority of the Subordinated Notes and not rejected by a Majority of the Controlling Class will nominate or (b) a successor Collateral Manager that meets Majority of the criteria set forth Controlling Class and not rejected by a Majority of the Subordinated Notes, in clause (d) above (other than subclause (v) thereof) following each case within 20 days of the issuance of notice of a vote regarding (or the resignation appointment of) such successor Investment Manager to the Holders of the Notes. For purposes of this paragraph, in determining whether the Holders of the requisite percentage of Aggregate Outstanding Amount of the Controlling Class or Subordinated Notes have given such rejection, Investment Manager Securities shall not be disregarded and shall be deemed to be Outstanding. In the event of a removal of the Collateral Investment Manager, if no successor Investment Manager and such proposed shall have been appointed or an instrument of acceptance by a successor will be appointed Investment Manager shall not have been delivered to the Investment Manager (a) within 20 days after approval of the successor Collateral Investment Manager by the Issuer; provided that , and the Global Rating Agency Condition has been satisfied with respect thereto.
issuance of notice of a vote regarding (for the appointment of) The such successor Collateral Investment Manager to the Holders of the Notes, or (b) within 90 days after the date of notice of removal of the Investment Manager, the removed Investment Manager, a Majority of the Controlling Class or a Majority of the Subordinated Notes may petition any court of competent jurisdiction for the appointment of a successor Investment Manager without the approval of the Holders of the Notes. In the event of a resignation by the Investment Manager, if no successor Investment Manager shall be entitled have been appointed or an instrument of acceptance by a successor Investment Manager shall not have been delivered to the Investment Manager within 120 days after the date of notice of resignation by the Investment Manager, the resigning Investment Manager, a Majority of the Controlling Class or a Majority of the Subordinated Notes may petition any court of competent jurisdiction for the appointment of a successor Investment Manager without the approval of the Holders of the Notes. In connection with such appointment and assumption and subject to the provisions of the Indenture, the Issuer may make such arrangements for the compensation of such successor as the Issuer and such successor Investment Manager shall agree; provided, however, that no compensation payable to such successor Investment Manager from payments on the Collateral Management Fee set forth in Sections 8(b). Upon shall be greater than that paid to the later Investment Manager under this Agreement without the prior written consent of a Majority of the expiration Aggregate Outstanding Amount of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral ManagerNotes voting separately. The Issuer, the Trustee and the successor Collateral Investment Manager shall take such action (or cause the outgoing Collateral Investment Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Investment Manager, as shall be necessary to effect effectuate any such succession.
(gf) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation Upon the later of either party to (i) the other, except as provided in clause (h) below.
(h) Sections 6, 7 (expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any a termination of this Agreement pursuant to specified in this Section 12 or Section 1413, as applicable, and (ii) the acceptance, in writing, by a successor Investment Manager of such appointment, all authority and power of the Investment Manager under this Agreement and the Indenture, whether with respect to the Collateral Obligations or otherwise, shall automatically and without further action by any Person pass to and be vested in the successor Investment Manager.
Appears in 1 contract
Samples: Investment Management Agreement (Saratoga Investment Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the NoteholdersIndenture, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer who shall direct the Trustee to distribute deliver a copy of such notice to the Holders within five (5) Business Days of receiptHolders); provided that that, the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations. As a condition precedent to assuming the obligations of the Collateral Manager hereunder, any successor portfolio manager shall agree that, in the event the Collateral Manager determines at any time that it is necessary or advisable under the requirements of the U.S. Risk Retention Rules to transfer the U.S. Retention Interest (or cause the Retention Holder to transfer the U.S. Retention Interest) to the successor Collateral Manager, the successor Collateral Manager shall acquire such U.S. Retention Interest from the Collateral Manager (or the Retention Holder) at a price equal to an amount agreed to between the Collateral Manager and the successor Collateral Manager.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit copies of such notice of resignation or cause removal to the Trustee to transmit copies (which shall forward a copy of such notice to the Holders Holders) and each Rating Agency S&P (if then rating a Class of Secured Notes) and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act Investment Company Act, (iv) has been identified in a prior written notice provided to S&P and (v) with respect has not been objected to which by a Majority of the Global Rating Agency Condition has been satisfiedControlling Class.
(e) A If (i) a Majority of the Controlling Class will Subordinated Notes fails to nominate a successor Collateral Manager that meets the criteria set forth in clause within thirty (d30) above (other than subclause (v) thereof) following the days after initial notice of the resignation or removal of the Collateral Manager and such or (ii) a Majority of the Controlling Class objects to the proposed successor will be nominated by the Holders of the Subordinated Notes within ten (10) days after the date of the notice of such nomination, then a Majority of the Controlling Class shall, within thirty (30) days after the failure described in clause (i) or (ii) of this sentence, as the case may be, nominate a successor collateral manager that meets the criteria set forth in Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor collateral manager is appointed within ninety (90) days (or, in the successor event of a change in applicable law or regulation which renders the performance by the Collateral Manager by of its duties under this Agreement or the Issuer; provided that Indenture to be a violation of such law or regulation, within thirty (30) days) following the Global Rating Agency Condition termination or resignation of the Collateral Manager, any of the resigning or removed Collateral Manager, a Majority of the Subordinated Notes and a Majority of the Controlling Class shall each have the right to petition a court of competent jurisdiction to appoint a successor collateral manager, in either such case whose appointment shall become effective after such successor has been satisfied with respect theretoaccepted its appointment and without the consent of any Holder or beneficial owner of any Notes.
(f) If no successor collateral manager has been appointed within 180 days after initial notice of the resignation or removal of the Collateral Manager, any Holder of Class A Notes with an Aggregate Outstanding Amount greater than $5 million as of the date of the initial notice of the resignation or removal of the Collateral Manager may petition any court of competent jurisdiction for the appointment of a successor collateral manager. Any such appointment by any court of competent jurisdiction shall not require the consent of, nor be subject to the disapproval of, the Issuer, any Holder or beneficial owner of any Notes or the outgoing Collateral Manager. The Issuer shall provide notice to the Holders and the Trustee (for forwarding to S&P) of the appointment of a successor collateral manager promptly after the effectiveness of such appointment.
(g) The successor Collateral Manager collateral manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(bSection 8(a) and no compensation payable to such successor collateral manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders or beneficial owners of each Class of Notes voting separately by Class, including Collateral Manager Notes, and prior written notice to S&P (if then rating a Class of Secured Notes). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Managercollateral manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person Person or entity pass to and be vested in the successor Collateral Managercollateral manager. The Issuer, the Trustee and the successor Collateral Manager collateral manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gh) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hi) below.
(hi) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Nuveen Churchill Direct Lending Corp.)
Term Termination. (a) This Agreement contract shall commence as of on the date first set forth above and shall continue in force until the first of the following occurs: Effective Date.
(i) The Event and posting of an Online Advertisement hereunder shall commence on the final liquidation “Start Date” indicated on the front page of this contract, and (unless terminated earlier in accordance with the provisions of this contract) shall expire at the end of the Assets and period indicated on the final distribution front page of the proceeds of such liquidation to the Noteholders, this contract.
(ii) In the payment case of a Magazine Advertisement, the term of this contract in full relation to such Magazine Advertisement shall commence with the “Start Issue” indicated on the front page of the Notesthis contract, and the satisfaction and discharge of the Indenture (unless terminated earlier in accordance with its terms or (iii) the early termination provisions of this Agreement in accordance with Section 12(bcontract) shall expire at the end of the period indicated on the front page of this contract. If any insertions are not placed before the relevant expiry or termination date (“Balance Insertions”), (c)as a result of the Advertiser’s non-compliance with or breach of any of the provisions of this contract, (d)or as a result of any act, (e) omission or (f) fault of the Advertiser, or Section 14.
(b) Subject only for any reason caused by or attributable to clause (c) belowtheAdvertiser, the Collateral Manager may resign, upon 60 days’ prior written notice then Publisher shall be under no further obligation to the Issuer (or place such shorter notice as is acceptable to the Issuer) Balance Insertions and the Trustee (and the Issuer Advertiser shall direct the Trustee not be entitled to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change credit or refund what-soever in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulationrespect thereof.
(c) No resignation or removal The term of this contract as a whole shall (unless terminated earlier in accordance with the provisions of this contract) expire upon the expiry of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all period of the Collateral Manager’s duties and obligations pursuant Event and/or posting of the Online Advertisements hereunder (in accordance with Clause 28(b)(i) above)or upon the expiry of the term in relation to this Agreement Magazine Advertisements (in writing (an “Instrument of Acceptance”accordance with Clause 28(b)(ii) above), whichever is the last to occur.
(d) Promptly after notice This contract may be terminated immediately at anytime by Publisher:
(i) in accordance with Clause 7, 8, or 9 of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while this contract; or
(ii) if any of the Notes are Outstandingrepresentations and/or warranties by the Advertiser (or the advertising agency, if any, acting as agent for the Issuer shall transmit Advertiser) under Clause 11 above is, proves to have been, or cause becomes incorrect or untrue, or if the Trustee to transmit copies Advertiser (or the advertising agency, if any, acting as agent for the Advertiser) breaches any of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) belowits covenants under Clause 11 above; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, or
(iii) has agreed to coordinate with if the replaced Collateral Manager regarding communications with Advertiser (or the Rating Agenciesadvertising agency, if any, acting as agent for the Advertiser) breaches any of its material obligations under this contract; or
(iv) does not cause if the Advertiser is or result in the Issuer becomingis deemed by law to be insolvent, or require the pool of Assets is unable to be registered as, an investment company under the 1940 Act and or admits its inability to pay its debts as they fall due; or
(v) with if the Advertiser is or its assets are subject to any voluntary or involuntary insolvency, bankruptcy, liquidation, winding-up, dissolution, receivership, judicial administration or management, custodianship, execution or other similar proceedings. Any such termination by Publisher shall be without prejudice to any accrued rights or remedies which Publisher may have against the Advertiser; any rights or remedies which Publisher may have in respect to of any accrued liabilities or obligations of, or any antecedent breaches by, the Advertiser; and any other rights or remedies whatsoever which Publisher may have against the Global Rating Agency Condition has been satisfiedAdvertiser.
(evi) A Majority the Advertiser conducts any activity which, in the sole and absolute opinion of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation Publisher, constitute deception, misrepresentation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretofraud.
(fvii) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral ManagerClauses 7, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g)12, 15, 16, 17, 18, 21, 22, 23 28 and 25 shall 29, and any other provisions which by their nature are intended to survive any the expiry or termination of this Agreement pursuant to contract, shall survive the expiry or termination of this Section 12 or Section 14contract.
Appears in 1 contract
Samples: Conditions of Contract
Term Termination. The term of this Agreement shall be from the Effective Date through June 28, 2022, unless earlier terminated in accordance with this Agreement or extended by mutual written agreement (a) the “Term”). This Agreement shall commence as of the date first set forth above and shall continue may be terminated prior to its expiration in force until the first of the following occursmanner: (i) by Voyager at any time immediately upon written notice to Consultant if Consultant has materially breached this Agreement, the final liquidation of the Assets Retirement Agreement dated May 20, 2019 between Consultant and the final distribution of Company (the proceeds of such liquidation to “Retirement Agreement”), or the Noteholders, Restrictive Covenants Agreement referenced in the Retirement Agreement; (ii) by Consultant at any time immediately upon written notice if Voyager has materially breached this Agreement or the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or Retirement Agreement; (iii) at any time upon the early mutual written consent of both parties; or (iv) automatically upon (x) Consultant’s failure to timely sign the Additional Release attached to the Retirement Agreement as Attachment B (the “Additional Release”), (y) Consultant’s revocation of the Additional Release, or (z) the death, physical incapacitation or mental incompetence of Consultant. Any expiration or termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without prejudice to any further liability or obligation of either party that has accrued prior to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity effective date of expiration or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination. Upon expiration or termination of this Agreement pursuant Agreement, neither Consultant nor Voyager will have any further obligations under this Agreement, except that (a) Consultant will terminate all Services in progress in an orderly manner as soon as practicable and in accordance with a schedule agreed to by Voyager, unless Voyager specifies in the notice of termination that Services in progress should be completed; (b) Consultant will deliver to Voyager all Work Product (defined below) made through expiration or termination; (c) Voyager will pay Consultant any monies due and owing Consultant, up to the time of termination or expiration, for Services properly performed and all authorized expenses actually incurred; (d) Consultant will immediately return to Voyager all Voyager Property (defined below) and other Confidential Information (defined below) and copies thereof provided to Consultant under this Section 12 Agreement; and (e) the terms, conditions and obligations under Sections 2 and 4 through 14 will survive expiration or Section 14termination of this Agreement.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders of the Notes and the holders of the Interests, (ii) the payment in full of the Notes, Notes and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement with respect to the Collateral Manager in accordance with Section 12(b12(c), (c), (d), (ein connection with the resignation of such Collateral Manager pursuant to Section 12(b) or (f) or in connection with the removal of such Collateral Manager pursuant to Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, resign upon 60 ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to or termination of this Agreement with respect to such Collateral Manager in connection with such resignation or removal shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) or Section 12(e) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each Rating Agency Xxxxx’x and shall appoint a successor Collateral Manager in accordance with Manager, at the procedures set forth in clause (e) below; provided that such successor Collateral Manager direction of a Majority of the Interests, which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Xxxxx’x Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Interests fails to nominate a successor within thirty (30) days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Interests within twenty (20) days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within sixty (60) days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Interests approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within ninety (d90) above days (other than subclause or, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within thirty (v30) thereofdays) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Interests and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in any such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any Holder of any Note or any holder of any Interest.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee Fees set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes, including Collateral Manager Notes, and of 100% of the holders of the Interests. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person Person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Notes and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and to the Issuer, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under the Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the Co-Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer or the Co-Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis.
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Capital Corp)
Term Termination. (a) This Agreement shall commence as of on the date first set forth above Effective Date and shall continue in full force and effect until December 31, 2007, unless earlier terminated in accordance with the first other provisions of this Agreement. Customer shall also have the right to terminate this Agreement and the Program with immediate effect, upon notice to Laureate, upon the occurrence of any of the following occurs: events specified in Section 2(b), Section 6(b), Section 8(b) (Modification initiated by Laureate), or Section 15(a), in which event Laureate shall immediately cease performance hereunder, and upon presentation by Laureate to Customer ***CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. of a final invoice for non-cancelable obligations and other payments then due in accordance with Appendix 7 for services already provided pursuant to the Scope (the “Final Invoice”), Customer will, within thirty (30) days after receipt of the Final Invoice, pay to Laureate those amounts invoiced for non-cancelable obligations incurred by Laureate prior to Customer’s notice of termination, it being understood and agreed that Customer shall have no further payment obligation to Laureate hereunder and that Customer may, at its option, apply any amounts advanced to Laureate but not applied to the payment of such non-cancelable obligations, if any; and provided further that Laureate shall refund to Customer the balance of any advance(s) not then applied. Additionally, (i) up until ten (10) business days after *** in accordance with Section ***, above, Customer shall have the final liquidation of the Assets right to terminate this Agreement for any reason, effective ***, and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture after *** in accordance with Section ***, above, Customer shall have the right to terminate this Agreement for any reason and at any time prior to completion of the Program by giving ninety (90) days written notice to Laureate, in which event Laureate shall comply with such notice and terminate work on the Program as soon as practicable, and use its terms or (iii) the commercially reasonable efforts to complete all activities underway and reduce cost to Customer, and ***. For purposes of clarification, *** is applicable for any early termination of this Agreement in accordance with except for terminations made pursuant to Section 12(b)***, (c)Section ***, (d)Section ***, (e) or (f) or and Section 14***.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice The termination of this Agreement for any reason shall not relieve either Party of its obligation to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy other Party for obligations in respect of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability compensation for services performed prior to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunderreceipt of notice of termination (Section 7, Xxxxxxx 0, Xxxxxxx 00 xxx Xxxxxxxx 0), (iixx) is legally qualified and has the capacity to assume all confidentiality of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indentureinformation (Section 9), (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agenciesinventions and patents (Section 11), (iv) does not cause or result in the Issuer becominginsurance (Section 13), or require the pool of Assets to be registered as(vi) indemnification (Section 17), an investment company under the 1940 Act and (vvii) with respect to which the Global Rating Agency Condition has been satisfied.
consents for advertising purposes and publications (e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(bSection 21). Upon the later of the In addition, any provision that, by it nature, is intended to survive expiration of the applicable notice periods with respect to or termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwisehereof, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such successionsurvive.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Biopharmaceutical Development and Manufacturing Services Agreement (Lpath, Inc)
Term Termination. (a) This Until this Agreement is terminated in accordance with its terms, this Agreement shall commence as be in effect until March 31, 2009 (the “Initial Term”) and shall be automatically renewed for a one-year term on that date and each anniversary date thereafter (a “Renewal Term”) unless at least two-thirds of the date first set forth above and shall continue in force until Independent Directors or the first holders of at least a majority of the following occurs: outstanding Common Shares agree not to automatically renew because (i) there has been unsatisfactory performance by the final liquidation of the Assets and the final distribution of the proceeds of such liquidation Manager that is materially detrimental to the Noteholders, Company or (ii) the payment in full compensation payable to the Manager hereunder is unfair; provided, that the Company shall not have the right to terminate this Agreement under clause (ii) above if the Manager agrees to continue to provide the services under this Agreement at a fee that at least two-thirds of the Notes, and Independent Directors determines to be fair pursuant to the satisfaction and discharge procedure set forth below. If the Company elects not to renew this Agreement at the expiration of the Indenture in accordance with its terms Initial Term or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) belowany such one-year extension term as set forth above, the Collateral Company shall deliver to the Manager may resign, upon 60 days’ prior written notice (the “Termination Notice”) of the Company’s intention not to renew this Agreement based upon the terms set forth in this Section 13(a) not less than 180 days prior to the Issuer expiration of the then existing term. If the Company so elects not to renew this Agreement, the Company shall designate the date (or the “Effective Termination Date”), not less than 180 days from the date of the notice, on which the Manager shall cease to provide services under this Agreement and this Agreement shall terminate on such shorter notice as date; provided, however, that in the event that such Termination Notice is acceptable given in connection with a determination that the compensation payable to the Issuer) and Manager is unfair, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon renegotiate such compensation by delivering to the effectiveness Company, no fewer than forty-five (45) days prior to the prospective Effective Termination Date, written notice (any such notice, a “Notice of any material change in applicable law or regulations which renders Proposal to Negotiate”) of its intention to renegotiate its compensation under this Agreement. Thereupon, the performance Company (represented by the Collateral Independent Directors) and the Manager shall endeavor to negotiate in good faith the revised compensation payable to the Manager under this Agreement. Provided that the Manager and at least two-thirds of its duties hereunder or under the Indenture Independent Directors agree to the terms of the revised compensation to be a violation payable to the Manager within 45 days following the receipt of the Notice of Proposal to Negotiate, the Termination Notice shall be deemed of no force and effect and this Agreement shall continue in full force and effect on the terms stated in this Agreement, except that the compensation payable to the Manager hereunder shall be the revised compensation then agreed upon by the parties to this Agreement. The Company and the Manager agree to execute and deliver an amendment to this Agreement setting forth such revised compensation promptly upon reaching an agreement regarding same. In the event that the Company and the Manager are unable to agree to the terms of the revised compensation to be payable to the Manager during such 45 day period, this Agreement shall terminate, such termination to be effective on the date which is the later of (A) ten (10) days following the end of such law or regulation45 day period and (B) the Effective Termination Date originally set forth in the Termination Notice.
(b) In the event that this Agreement is terminated in accordance with the provisions of Section 13(a) of this Agreement, the Company shall pay to the Manager, on the date on which such termination is effective, a termination fee (the “Termination Fee”) equal to the amount of four times the sum of the average annual Base Management Fee and the average annual Incentive Compensation earned by the Manager during the two 12-month periods immediately preceding the date of such termination, calculated as of the end of the most recently completed fiscal quarter prior to the date of termination. The obligation of the Company to pay the Termination Fee shall survive the termination of this Agreement.
(c) No resignation or removal later than 180 days prior to the expiration of the Collateral Initial Term or any Renewal Term, the Manager pursuant may deliver written notice to the Company informing it of the Manager’s intention to decline to renew this Agreement, whereupon this Agreement shall not be renewed and extended and this Agreement shall terminate effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all upon expiration of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)then current term.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 1213, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder)9, 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g)13(b) and 16 of this Agreement. In addition, 15, 17, 21, 22, 23 Sections 8(i) (including the provisions of Exhibit B) and 25 11 of this Agreement shall survive any termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 1 contract
Term Termination. (a) This Agreement The obligations of the Sponsor shall commence as of on the date first set forth above Effective Date and shall continue in force indefinitely until the first of the following occurs: earlier to occur of:
(i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, Note Purchase Agreement is terminated in accordance with its terms;
(ii) the payment Noteholders electing by written notice to the Company, in full the sole and absolute discretion of the NotesNoteholders, to terminate this Agreement upon the occurrence of any of the following: (A) the Sponsor breaches or otherwise fails to perform any covenant or agreement set forth in Section 2(a), and, in the case of defaults on the payment of any interest due under the Note Purchase Agreement, such breach or failure remains uncured (if curable) for 3 Business Days following notice to the Company and the satisfaction Noteholders and discharge in such other cases, such breach or failure could be reasonably expected to (1) create unsafe working, operation or maintenance conditions or otherwise violate in any material way any applicable Law, (2) cause the operation of the Indenture Primary Collateral to fall below the standard of a prudent operator of similar facilities, (3) otherwise have a materially adverse impact on the ability of the Primary Collateral to operate and be maintained in accordance with its terms acceptable industry standards or (4) otherwise have a materially adverse impact on the value of the Primary Collateral or the rights of the holders of the Eligible Notes with respect thereto, in each case, if such breach or failure remains uncured (if curable) for 30 days following notice to the Company and the Noteholders; and (B) the material breach or failure to perform by the Sponsor of any other covenant or agreement in this Agreement, in each case, if such breach or failure remains uncured (if curable) for 30 days following notice to the Company and the Noteholders (any of the foregoing clauses (A) and (B), a “Breach”);
(iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) Parties and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement Noteholders otherwise mutually agree in writing (an “Instrument of Acceptance”).to terminate this Agreement; or
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool foreclosure and sale of Assets to be registered as, an investment company any Collateral by any secured party under the 1940 Act and (v) Note Documents or an exercise of remedies by any secured party under the Note Documents with respect to which Equity Interests pledged to secure the Global Rating Agency Condition has been satisfiedObligations.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Sponsor Support Agreement (California Resources Corp)
Term Termination. (a) A. This Supplemental Agreement shall commence as of the date first set forth above shown above, and shall continue for an indefinite period until terminated in the manner prescribed in this paragraph. Notwithstanding any termination or expiration of this Supplemental Agreement, any and all warranties, representations or agreements to hold harmless shall survive such termination and remain in full force until the first of the following occurs: and effect.
B. Any party may terminate this Supplemental Agreement without cause by (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 giving 30 days’ prior written notice to the Issuer others of such termination and (or such shorter notice as is acceptable to the Issuerii) and the Trustee (and the Issuer shall direct the Trustee to distribute giving a copy of such notice thereof to ASCF. Notices to ASCF shall be addressed to ASCF at: ASC Finance, LLC - P. O. Xxx 0000 Xxxxxxxx Xxxx, Xxxxxxxx 00000. Notice must be mailed to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change address designated in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Supplemental Agreement and shall be effective until 30 days after the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)delivery or mailing, whichever is earliest.
(d) Promptly after C. This Supplemental Agreement may, at the option of Administrator, terminate immediately and without notice for cause upon the occurrence of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstandingfollowing events:
i. Xxxxxx’s assignment or attempted assignment of this Supplemental Agreement or any portion of any interest in or any payment due under the “no interest” Payment Plan Term Agreement without the expressed prior written consent of ASCF and Administrator;
ii. The filing by Dealer of a voluntary petition in bankruptcy or execution by Dealer of an assignment for the benefit of creditors;
iii. The filing of a petition to have Dealer declared bankrupt, which is not vacated within 30 days;
iv. The material breach of any provision contained within this supplemental agreement;
v. Dealer’s acts of fraud, defalcation, dishonesty or intentional misrepresentation directed to Administrator, or ASCF, and their respective agents or employees; and
vi. Any violation of the Issuer shall transmit Dealer-Administrator Agreement. SAMPLE
D. Dealer hereby agrees to, at all times, indemnify and hold Administrator, ASCF, and their respective employees, agents, successors and assigns, free and harmless against any and all losses, judgments, defense costs or cause other liabilities arising out of any and all claims, actions, or demands, whether well founded or not, that may be asserted against all or any of them by any Purchaser, or any third party, regarding the Trustee “no interest” Payment Plan Terms Agreements and performance by Dealer thereunder, including but not limited to transmit copies of such notice any and all losses, judgments, defense costs or other liabilities for cancellation refunds, or for fraud, defalcation, dishonesty or intentional misrepresentation to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with extent the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability same are also directed to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunderAdministrator, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becomingASCF, or require the pool of Assets to be registered astheir agents, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedemployees, successors or assigns.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Term Termination. (a) This 7.1 The term of this Agreement shall commence as of on the date first set forth above Effective Date hereof and shall continue in force until the first date on which the earliest of the following occurs: :
(ia) the final liquidation of the Assets January 1, 2014 , and the final distribution of the proceeds of such liquidation thereafter, this Agreement shall continue on a year-to-year basis until terminated by either party upon 90 days written notice to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14other party.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior delivery of written notice of termination by the Company to Manager following the Issuer occurrence of any of the following:
(i) at any time if Manager breaches any material provision of this Agreement and Manager fails or refuses to cure them and within 30 days after written notice from the Company identifying such failure and stating that the failure to cure the same may result in the termination of this Agreement and the Option (or, if such cure reasonably requires more than 30 days to complete, Manager has not promptly commenced actions for such cure, and prosecuted such actions with diligence after receipt of such notice);
(ii) at any time if Manager has been guilty of gross negligence or willful misconduct in carrying out its duties hereunder;
(iii) at any time if there is instituted by or against Manager any proceedings under the Bankruptcy Reform Act of 1978, as amended, under any other bankruptcy law, or under any other law for the relief of debtors now or hereafter existing, or a receiver is appointed for all or substantially all of the assets of Manager, and such proceeding is not dismissed or such shorter notice receiver is not discharged, as is acceptable the case may be, within 30 days thereafter; or
(iv) at any time if manager shall (A) become insolvent, (B) generally fail to or admit in writing its inability to, pay debts as they become due, and (C) make a general assignment for the Issuerbenefit of creditors, (D) and apply for, consent to or acquiesce in the Trustee (and the Issuer shall direct the Trustee to distribute appointment of a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law trustee, receiver, or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulationother custodian.
(c) No resignation or removal upon exercise of the Collateral Manager pursuant to Option, this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).terminate; and
(d) Promptly after at any time on 90 days written notice of any removal under Section 14 or any resignation of by the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice Company to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfiedManager.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Houston Exploration Co)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholdersholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that that, the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are OutstandingManager, the Issuer shall transmit copies of notice of such resignation or cause removal to the Trustee to transmit copies (which shall forward a copy of such notice to the Holders holders) and each the Rating Agency Agencies and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becomingto become, or require the pool of Assets to be registered as, an investment company under the 1940 Act Act, (iv) has been identified in a prior written notice provided to the Rating Agencies, and (v) with respect to which the Global Rating Agency Condition has been satisfiedapproved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Controlling Class will Subordinated Notes fails to nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the collateral manager within 30 days of initial notice of the resignation or removal of the Collateral Manager and such or (ii) a Majority of the Controlling Class does not approve the proposed successor will be collateral manager nominated by the holders of the Subordinated Notes within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 30 days of the failure described in clause (i) or (ii) of this sentence, as the case may be, nominate a successor collateral manager that meets the criteria set forth in Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor collateral manager is appointed within 90 days (or, in the successor event of a change in applicable law or regulation which renders the performance by the Collateral Manager by of its duties under this Agreement or the Issuer; provided that Indenture to be a violation of such law or regulation, within 30 days) following the Global Rating Agency Condition termination or resignation of the Collateral Manager, any of the resigning or removed Collateral Manager, a Majority of the Subordinated Notes (disregarding Collateral Manager Securities, unless 100% of the Subordinated Notes are Collateral Manager Securities) and a Majority of the Controlling Class (disregarding Collateral Manager Securities) shall have the right to petition a court of competent jurisdiction to appoint a successor collateral manager, in either such case whose appointment shall become effective after such successor has been satisfied with respect theretoaccepted its appointment and without the consent of any holder or beneficial owner of any Note.
(f) If no successor collateral manager has been appointed within 180 days of initial notice of the resignation or removal of the Collateral Manager, any Holder of Class A-1 Notes with an Aggregate Outstanding Amount that exceeded $5 million as of the date of the initial notice of the resignation or removal of the Collateral Manager may petition any court of competent jurisdiction for the appointment of a successor collateral manager. Any such appointment by any court of competent jurisdiction will not require the consent of, and shall not be subject to the disapproval of, the Issuer, any Holder or the outgoing Collateral Manager. The Issuer will provide notice to the Holders and the Trustee (for forwarding to each Rating Agency) of the appointment of a successor collateral manager promptly after the effectiveness of such appointment.
(g) The successor Collateral Manager collateral manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor collateral manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders or beneficial owners of each Class of Notes voting separately by Class, including Collateral Manager Securities. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Managercollateral manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity Person pass to and be vested in the successor Collateral Managercollateral manager. The Issuer, the Trustee and the successor Collateral Manager collateral manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gh) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (hi) below.
(hi) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
(j) In connection with any vote under this Agreement, in determining whether the Holders of the requisite Aggregate Outstanding Amount have given any request, demand, authorization, direction, notice, consent or waiver or made any proposal, if Collateral Manager Securities are disregarded and deemed not to be outstanding in connection with such vote and a Class of Notes entitled to vote is comprised entirely of Collateral Manager Securities, then the most senior Class of Notes that is not comprised entirely of Collateral Manager Securities shall be entitled to exercise the specified voting rights, disregarding any Collateral Manager Securities, in lieu of such other Class of Notes.
Appears in 1 contract
Samples: Collateral Management Agreement (Apollo Debt Solutions BDC)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders of the Obligations, (ii) the payment in full of the Notes, Obligations and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement with respect to the Collateral Manager in accordance with Section 12(b12(c), (c), (d), (ein connection with the resignation of such Collateral Manager pursuant to Section 12(b) or (f) or in connection with the removal of such Collateral Manager pursuant to Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that that, the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations regulation which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager pursuant to or termination of this Agreement with respect to such Collateral Manager in connection with such resignation or removal shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) or Section 12(e), and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes Obligations are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each the Rating Agency Agencies (provided that, in the case of S&P, only for so long as any Class A Debt remains Outstanding) and shall appoint a successor Collateral Manager in accordance with Manager, at the procedures set forth in clause (e) below; provided that such successor Collateral Manager direction of a Majority of the Subordinated Notes, which (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfied, (v) the appointment of which does not subject the issuer to material adverse tax consequences and (vi) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by a Majority of the Subordinated Notes within 20 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, the Issuer, a Majority of the Subordinated Notes and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in any such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any Holder of any Obligation.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee Fees set forth in Sections 8(bSection 8(a) (except such portion of the Collateral Management Fees due and payable to the former Collateral Manager as set forth in Section 8(d)) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Obligations. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person Person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Fifth Street Senior Floating Rate Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Aggregate Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (TICC Capital Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force and effect until the first of the following occurs: (i) the final payment in full of the Notes and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full holders of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms ; or (iii) the early termination of this Agreement in accordance with Section 12(b), subsections (c), (d), (eb) or (fc) of this Section 11 or Section 1412 of this Agreement.
(b) Subject only Notwithstanding any other provision hereof to clause the contrary (cbut subject to subsection (e) below), this Agreement may be terminated without cause by the Collateral Portfolio Manager, and the Portfolio Manager may resign, upon 60 at least ninety (90) days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that provided, that, the Collateral Portfolio Manager shall have the right to resign and terminate its rights and obligations under this Agreement immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Portfolio Manager of its duties hereunder under this Agreement or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this This Agreement shall be effective until automatically terminated in the date as of event the Portfolio Manager or the Issuer takes any action which would require a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all registration of the Collateral Manager’s duties Issuer, the Co-Issuer or of the pool of Assets under the provisions of the Investment Company Act, and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)the Issuer notifies the Portfolio Manager thereof.
(d) Promptly after notice If this Agreement is terminated pursuant to this Sxxxxxx 00, xxxx of the parties shall have any further liability or obligation to the other parties, except as provided in Sections 7(f), 10 (other than the first sentence of subclause (a) thereof), 13, 14 and 20(b) and (c) of this Agreement.
(e) Any removal under Section 14 or any resignation of the Collateral Portfolio Manager while any Notes are Outstanding will not be effective until (i) the appointment by the Issuer, and with the consent of a Majority of the Controlling Class (excluding Portfolio Manager Securities from the numerator and the denominator in calculating such Majority consent), of a successor portfolio manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice an established institution with experience managing assets similar to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause Assets that (e) below; provided that such successor Collateral Manager (i1) has demonstrated an ability to professionally and competently perform duties similar reasonably comparable to those imposed upon the Collateral Portfolio Manager hereunderunder this Agreement and the Indenture, (ii2) is legally qualified and has the capacity to assume act as a successor to the Portfolio Manager under this Agreement, (3) receives satisfaction of the Fitch Rating Condition, (4) shall not cause the Issuer, the Co-Issuer or the pool of Assets to become required to register as an investment company under the provisions of the Investment Company Act, and (5) shall not result in the imposition of any entity-level or withholding tax on the Issuer in excess of that already payable by the Issuer or the payments to the Holders and (ii) written acceptance of appointment and assumption of all of the responsibilities, duties and obligations of the Collateral Portfolio Manager hereunder under this Agreement and under the applicable terms of the IndentureIndenture applicable to the Portfolio Manager by such successor portfolio manager. The Issuer, the Trustee and the successor portfolio manager shall take such action (iiior cause the outgoing Portfolio Manager to take such action) has agreed to coordinate consistent with this Agreement and the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority terms of the Controlling Class will nominate Indenture applicable to the Portfolio Manager, as shall be necessary to effectuate any such succession. If the Portfolio Manager shall resign or be removed but a successor Collateral Manager that meets portfolio manager shall not have assumed all of the criteria set forth in clause (d) above (other than subclause (v) thereof) following Portfolio Manager’s duties and obligations under this Agreement within 90 days after the notice date of the resignation or removal removal, then the Portfolio Manager or the Issuer may petition any court of competent jurisdiction for the appointment of a successor portfolio manager. No vote of any Holder and no satisfaction of the Collateral Manager and such proposed successor Fitch Rating Condition will be appointed required in connection with such appointment by a court of competent jurisdiction. The Issuer will provide Fitch with written notice of any removal or resignation of the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoPortfolio Manager.
(f) The Notwithstanding the foregoing, as a condition precedent to assuming the obligations of the Portfolio Manager hereunder, any successor Collateral portfolio manager shall agree that, in the event the Portfolio Manager determines at any time that it is necessary or advisable under the EU/UK Risk Retention Requirements in effect at such time to transfer (or cause the transfer of) any Notes comprising the EU/UK Retention Interest necessary to maintain compliance with such EU/UK Risk Retention Requirements, the successor portfolio manager shall be entitled acquire from the Portfolio Manager the minimum aggregate principal amount of such Notes necessary to maintain compliance with such Collateral Management Fee set forth EU/UK Risk Retention Requirements, at a price equal to the fair value thereof.
(g) In the event of removal of the Portfolio Manager by the Issuer pursuant to this Agreement, the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer or the Trustee, to the extent so provided in Sections 8(bthe Indenture, may by written notice to the Portfolio Manager as provided under this Agreement terminate all the rights and obligations of the Portfolio Manager under this Agreement (except those that survive termination pursuant to subsection 11(d) above or as otherwise provided in this Agreement). Upon the later of the expiration of the applicable notice periods period with respect to termination specified in this Section 11 or Section 12 or in Section 14 of this Agreement, as applicable, and the upon acceptance by a successor portfolio manager of its appointment hereunder by the successor Collateral Managerappointment, all authority and power of the Collateral Portfolio Manager hereunderunder this Agreement or the Indenture, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity Person pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) belowportfolio manager.
(h) Sections 6If Bxxx Capital Specialty Finance, 7 Inc. resigns or is removed as Portfolio Manager hereunder, the Issuer shall (with respect to any indemnity or insurance provided thereunderat the request of Bxxx Capital Specialty Finance, Inc.), 8 (with respect at its own expense, use commercially reasonable efforts to, and shall cause the Co-Issuer to, as soon as reasonably practical but in no event later than 30 days after the effective date of such resignation or removal, change their respective names to remove any accrued and unpaid Collateral Management Feesreference to, without limitation, “BCC,” “Bxxx,” “Bxxx Capital,” “Bxxx Capital Credit,” “BCSF,” or any similar name, unless otherwise waived in writing Bxxx Capital Specialty Finance, Inc. prior to the effective date of the applicable name changes. This Section 11(g) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any the termination of this Agreement pursuant to this Section 12 or Section 14Agreement.
Appears in 1 contract
Samples: Portfolio Management Agreement (Bain Capital Specialty Finance, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) Holders or the payment in full of the Notes, and (ii) the satisfaction and discharge termination of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14terms.
(b) Subject only to clause (cSection 12(e) belowand the other requirements hereof, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice period as is acceptable to the Issuer) to the Issuer and the Trustee (and the Issuer who shall direct the Trustee to distribute a copy of forward such notice to the Holders within five (5) Business Days of receiptthe Notes and each Rating Agency then rating a Class of Secured Notes); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Promptly, but in any event within 30 days, after notice of any resignation or removal of the Collateral Manager pursuant to under any provision of this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstandingoutstanding, a Majority of the Issuer Subordinated Notes shall transmit or cause the Trustee to transmit copies of such nominate an institution by written notice to the Holders and each Rating Agency and shall appoint Trustee that is not an Affiliate of the Collateral Manager as a successor Collateral Manager in accordance with collateral manager subject to the procedures set forth in clause (e) below; provided consent of a Majority of the Controlling Class and the requirement that such successor Collateral Manager collateral manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunderManager, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the act as Collateral Manager hereunder and under the applicable terms of the Indenture, Indenture and (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act Investment Company Act. If a Majority of the Controlling Class does not consent to such institution within 30 days of receiving notice of such nomination, a Majority of the Controlling Class may nominate, subject to the consent of a Majority of the Subordinated Notes, an institution as a successor collateral manager that is not an Affiliate of the Collateral Manager that satisfies the provisions of clauses (i) through (iv) above; provided, that if the Majority of the Subordinated Notes does not consent to the institution nominated by the Majority of the Controlling Class within 30 days of receiving notice of such nomination, a Majority of the Controlling Class may thereafter select a successor collateral manager for the Issuer without the consent of Holders of Subordinated Notes. All nominations and (v) consents to nominations shall be made by delivering written notice to the Trustee and the Issuer. The Issuer shall promptly appoint as successor collateral manager any institution that has been nominated and with respect to which the Global Rating Agency Condition has applicable consent shall have been satisfied.
(e) A Majority of given, as provided above. Notwithstanding the Controlling Class will nominate foregoing, as a successor Collateral Manager that meets condition precedent to assuming the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power obligations of the Collateral Manager hereunder, whether any successor collateral manager shall agree that, in the event that the Collateral Manager determines at any time that it is necessary or advisable under the EU/UK Securitization Requirements in effect at such time to transfer (or cause the transfer of) any Notes comprising the EU/UK Retained Interest necessary to maintain compliance with respect such EU/UK Securitization Requirements, the successor collateral manager shall acquire from the Collateral Manager the minimum aggregate principal amount of such Notes necessary to maintain compliance with such EU/UK Securitization Requirements, at a price equal to the fair value thereof.
(d) If no successor collateral manager is nominated as provided above, the resigning or removed Xxxxxxxxxx Manager may, within 90 days after notice of its resignation or removal is given to the Holders of the Notes pursuant to any provision of this Agreement, petition any court of competent jurisdiction for the appointment of a successor collateral manager. In connection with the appointment of a successor collateral manager, the Issuer may make such arrangements for the compensation of such successor as the Issuer and such successor shall agree; provided, however, that no compensation payable to a successor from payments on the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Managergreater than that provided hereunder. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effect any such succession.
(ge) No removal or resignation of the Collateral Manager shall be effective until the date as of which a successor collateral manager shall have been appointed and agreed in writing to assume all of the Collateral Manager’s duties and obligations pursuant to this Agreement. The Issuer will provide notice of the appointment and approval of a successor collateral manager to each Rating Agency then rating a Class of Secured Notes.
(f) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause clauses (h) belowand (i) below and in Section 10 and Section 15.
(g) In the event of removal or resignation of the Collateral Manager pursuant to this Agreement, the Issuer shall have all of the rights and remedies available with respect thereto at law or equity. Upon the later to occur of (i) expiration of the applicable notice period with respect to a removal or resignation specified in this Section 12 or Section 14, as applicable, and (ii) acceptance of its appointment by the successor collateral manager, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any Person pass to and be vested in the successor collateral manager.
(h) Sections Section 6, 7 (with respect to any indemnity or insurance provided thereunder)Section 8, 8 (with respect to any accrued and unpaid Collateral Management Fees) Section 10, 12(g), Section 15, 17, 21, 22, 23 Section 17 and 25 Sections 21 through 26 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Palmer Square Capital BDC Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each Rating Agency (provided that in the case of S&P, only for so long as any Class A Notes remain Outstanding) and shall appoint a successor an institution as Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager which institution (i) has demonstrated an ability ability, whether as an entity or by its principal or employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class; provided that if the Class A Notes are the Controlling Class, then a Supermajority of the Controlling Class.
(e) A If (i) the Issuer fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will (provided that if the Class A Notes are the Controlling Class, then a Supermajority of the Controlling Class) does not approve the proposed successor nominated by the Issuer within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class (provided that if the Class A Notes are the Controlling Class, then a Supermajority of the Controlling Class) shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If the Issuer approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, the Issuer and such proposed successor will be appointed a Majority of the Controlling Class (provided that if the Class A Notes are the Controlling Class, then a Supermajority of the Controlling Class) shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any Holder or beneficial owner of any Note.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes voting separately by Class, including Collateral Manager Notes and the Issuer. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), ) 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital Investment Corp)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the NotesDebt, and the satisfaction and discharge of the Indenture and the Credit Agreement in accordance with its the respective terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders, the Loan Agent and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Collateral Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Debt is Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Collateral Trustee (who shall forward a copy of such notice to the Holders) and each the Rating Agency and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability ability, whether as an entity or by its principals or employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global S&P Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Subordinated Notes within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Subordinated Notes and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any holder or beneficial owner of any Debt.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Debt voting separately by Class, including Collateral Manager Debt. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Collateral Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g12(h), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC 3, Inc.)
Term Termination. The term of this Agreement shall be from the Effective Date through June 28, 2022, unless earlier terminated in accordance with this Agreement or extended by mutual written agreement (a) the “Term”). This Agreement shall commence as of the date first set forth above and shall continue may be terminated prior to its expiration in force until the first of the following occursmanner: (i) by Voyager at any time immediately upon written notice to Consultant if Consultant has materially breached this Agreement, the final liquidation of the Assets Retirement Agreement dated May 20, 2019 between Consultant and the final distribution of Company (the proceeds of such liquidation to “Retirement Agreement”), or the Noteholders, Restrictive Covenants Agreement referenced in the Retirement Agreement; (ii) by Consultant at any time immediately upon written notice if Voyager has materially breached this Agreement or the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or Retirement Agreement; (iii) at any time upon the early mutual written consent of both parties; or (iv) automatically upon (x) Consultant’s failure to timely sign the Additional Release attached to the Retirement Agreement as Attachment A (the “Additional Release”), (y) Consultant’s revocation of the Additional Release, or (z) the death, physical incapacitation or mental incompetence of Consultant. Any expiration or termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (f) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without prejudice to any further liability or obligation of either party that has accrued prior to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity effective date of expiration or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination. Upon expiration or termination of this Agreement pursuant Agreement, neither Consultant nor Voyager will have any further obligations under this Agreement, except that (a) Consultant will terminate all Services in progress in an orderly manner as soon as practicable and in accordance with a schedule agreed to by Voyager, unless Voyager specifies in the notice of termination that Services in progress should be completed; (b) Consultant will deliver to Voyager all Work Product (defined below) made through expiration or termination; (c) Voyager will pay Consultant any monies due and owing Consultant, up to the time of termination or expiration, for Services properly performed and all authorized expenses actually incurred; (d) Consultant will immediately return to Voyager all Voyager Property (defined below) and other Confidential Information (defined below) and copies thereof provided to Consultant under this Section 12 Agreement; and (e) the terms, conditions and obligations under Sections 2 and 4 through 14 will survive expiration or Section 14termination of this Agreement.
Appears in 1 contract
Term Termination. (a) This Agreement 7.1 The term of this AGREEMENT shall commence begin on the EFFECTIVE DATE of this AGREEMENT and continue until this AGREEMENT is terminated as provided herein or until the expiration of the date first set forth above and shall continue last-to-expire patent within the PATENT RIGHTS in force until the TERRITORY, or following [****] from the first commercial SALE of a LICENSED PRODUCT, whichever is later, on a country-by-country basis.
7.2 This AGREEMENT will terminate:
a. automatically if LICENSEE becomes bankrupt and/or if the business of LICENSEE is placed in the hands of a receiver, assignee, or trustee, whether by voluntary act of LICENSEE or otherwise, makes an assignment for the benefit of creditors, or has any other proceedings filed against LICENSEE under any bankruptcy or insolvency laws; or
b. upon [****] written notice from LICENSOR if LICENSEE becomes insolvent unless, before the end of the following occurs: [****] period, LICENSEE provides LICENSOR with evidence of its solvency; or
c. upon [****] written notice from LICENSOR if LICENSEE breaches or defaults on its obligation to make payments (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (eif any are due) or (f) or Section 14.
(b) Subject only to clause (c) belowreports, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) belowterms of Article 5 hereunder, unless, before the end of the [****] period, LICENSEE has cured the breach or default and so notifies LICENSOR, stating the manner of the cure; or
d. upon [****] written notice if LICENSEE breaches or defaults on any other obligation under this AGREEMENT, unless, before the end of the [****] period, LICENSEE has cured the breach or default and so notifies LICENSOR, stating the manner of the cure; or
e. at any time by mutual written agreement between LICENSEE AND LICENSOR; or
f. if LICENSEE defaults upon its indemnification or insurance obligations under Article 11 unless LICENSEE has contested and/or cured the default and so notifies LICENSOR stating the manner of the basis for contesting the default and the manner of the cure; or
g. if LICENSEE is convicted of a felony relating to the development, manufacture, use, marketing, distribution, or sale of the LICENSED PRODUCTS; or
h. at any time upon [****] written notice by LICENSEE to LICENSOR, provided that such successor Collateral Manager (i) has demonstrated an ability LICENSEE pays to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of [****] before the expiration of such [****] notice period.
7.3 If this AGREEMENT is terminated for any cause:
a. nothing herein will be construed to release either party of any obligation matured prior to the applicable notice periods effective date of the termination;
b. after the effective date of the termination, LICENSEE will provide LICENSOR with respect to termination specified a written inventory of all LICENSED PRODUCTS in this Section 12 process of manufacture, in use or in Section 14 stock. LICENSEE may SELL any such LICENSED PRODUCTS following such termination if it pays to LICENSOR earned royalties thereon and any other amount due pursuant to the acceptance terms of its appointment hereunder Article 5; and
c. the parties will be bound by the successor Collateral Manager, all authority and power provisions of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action Articles 2 (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunderDefinitions), 8 3 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(gLimitation of Liability), 155 (Payments and Reports), 179 (Assignment), 2111 (Indemnification and Insurance), 2212 (Use Of Name), 23 13 (Confidential Information), 15 (Export Control), 16 (Alternate Dispute Resolution), and 25 shall survive any termination 17 (General) of this Agreement pursuant to this Section 12 or Section 14AGREEMENT.
Appears in 1 contract
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee (which shall forward a copy of such notice to the Holders) and each Rating Agency (provided that in the case of S&P, only for so long as any Class A Notes and/or the Class B Notes remain Outstanding) and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Interests, which institution (i) has demonstrated an ability ability, whether as an entity or by its principals and employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Investment Company Act, (viv) with respect to which the Global Rating Agency Condition has been satisfiedsatisfied and (vi) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Interests fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the holders of the Interests within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Interests approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Interests and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any holder or beneficial owner of any Note.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Notes voting separately by Class, including Collateral Manager Notes and 100% of the holders of the Interests. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), ) 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the NoteholdersHolders, (ii) the payment in full of the NotesDebt, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement in accordance with Section 12(b), (c), (d), (e) or (fe) or Section 14.
(b) Subject only to clause (c) below, the Collateral Manager may resign, upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) ), the Holders, the Collateral Agent, the Loan Agent and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt)Trustee; provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No Notwithstanding the provisions of clause (b) above, no resignation or removal of the Collateral Manager or termination of this Agreement pursuant to this Agreement such clause shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved in accordance with Section 12(d) and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)) and has assumed such duties and obligations.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Debt is Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders Trustee and each the Collateral Agent (which shall forward a copy of such notice to the Holders) and the Rating Agency and shall appoint an institution as Collateral Manager, at the direction of a successor Collateral Manager in accordance with Majority of the procedures set forth in clause (e) below; provided that such successor Collateral Manager Subordinated Notes, which institution (i) has demonstrated an ability ability, whether as an entity or by its principals or employees, to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and Act, (viv) with respect to which the Global S&P Rating Agency Condition has been satisfiedsatisfied and (v) has been approved by a Majority of the Controlling Class.
(e) A If (i) a Majority of the Subordinated Notes fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class will does not approve the proposed successor nominated by the Holders of the Subordinated Notes within ten days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clauses (i) or (ii) of this sentence, as the case may be, nominate a successor Collateral Manager that meets the criteria set forth in clause Section 12(d). If a Majority of the Subordinated Notes approves such Controlling Class nominee, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (d) above (other than subclause (v) thereofor, in the event of a change in applicable law or regulation which renders the performance by the Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the notice of the termination or resignation or removal of the Collateral Manager Manager, any of the Collateral Manager, a Majority of the Subordinated Notes and such proposed successor will be appointed a Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager by Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect theretoconsent of any holder or beneficial owner of any Debt.
(f) The successor Collateral Manager shall be entitled to such the Collateral Management Fee set forth in Sections 8(b)Section 8(a) and no compensation payable to such successor Collateral Manager shall be greater than as set forth in Section 8(a) without the prior written consent of 100% of the Holders of each Class of Debt voting separately by Class, including Collateral Manager Debt. Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee Collateral Agent and the successor Collateral Manager shall take such action (or the Issuer shall cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in clause (h) below.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g12(h), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Collateral Management Agreement (GOLUB CAPITAL BDC, Inc.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and prior written notice to the Issuer, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agencies; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agencies; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Xxxxxxxxxx Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agencies.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Credit Income Corp.)
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Securities and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and prior written notice to the Issuer, the Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Securities are Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Xxxxxxxxxx Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Collateral Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Securities.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Securities, including Collateral Manager Securities.
(g) The Issuer, the Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon the later of the expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Technology Finance Corp. II)
Term Termination. (a) This Agreement Executive's employment pursuant hereto shall commence as of on the date first set forth above and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement (the "Employment Date") and shall remain in accordance with Section 12(b)effect, subject to renewal pursuant to subparagraph (b) of this paragraph 2 and to earlier termination pursuant to subparagraph (c) of this paragraph 2, until December 2, 1999 (the "Expiration Date"). The term of employment hereunder, (d)commencing with the Employment Date and including any renewals or extensions hereof, (e) or (f) or Section 14is hereinafter referred to as the "Employment Term."
(b) Subject only In addition to clause (c) below, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder or under the Indenture to be a violation of such law or regulation.
(c) No resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable Employment Term as hereinabove provided, this Agreement and Executive's employment by the Company shall terminate on the Date of Termination (as hereinafter defined) as follows:
(i) automatically upon Executive's death;
(ii) at the Company's option if, as a result of Executive's incapacity due to physical or mental illness, he is unable to perform the duties of his employment hereunder for a continuous period of sixty (60) days or an aggregate of ninety (90) days in any one hundred eighty (180) day period (each such period being hereinafter referred to as a "Disability Period");
(iii) at the Company's option at any time for Cause. "Cause" shall be defined to mean (A) the commission by Executive of any felony, (B) the commission by Executive of any crime involving dishonesty, (C) the engagement by Executive in any act of fraud, misappropriation or misfeasance, (D) the engagement by Executive in any activity constituting a material breach of paragraphs 9, 10 or 11 of this Agreement or other material breach by Executive of any provision of this Agreement, (E) Executive's failure to carry out the reasonable written directives of the Board or Chief Operating Officer (consistent with the provisions of this Agreement) or his repeated non-attentiveness to or repeated failure to carry out his duties under this Agreement, (F) the engagement by Executive in any transaction with the Company involving a conflict of interest or self-dealing, without the prior written consent of the Board, or (H) the engagement by Executive in conduct materially adverse to the interests of the Company; provided, however, that the Company shall not be deemed to have Cause pursuant to clause (iii)(E) unless the Company gives Executive written notice periods that the specified conduct has occurred and, if such conduct can be cured, Executive fails to cure the conduct within thirty (30) days after receipt of such notice. Termination of Executive for Cause shall be communicated by delivery to Executive of a notice specifying the conduct or event constituting Cause, including, with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided conduct described in clause (hiii)(E) belowwhich Executive can cure, that Executive failed to cure such conduct during the thirty-day period following the date on which the Company gave Executive written notice thereof.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Employment Agreement (Credentials Services International Inc)
Term Termination. (a) Term: This Agreement shall commence as of the date first set forth above Effective Date and shall continue in force until the first of the following occurs: (i) the final liquidation of the Assets and the final distribution of the proceeds of such liquidation to the Noteholders, (ii) the payment in full of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms or (iii) the early termination of this Agreement terminated in accordance with Section 12(b5(b) (the “Term”), (c), (d), (e) or (f) or Section 14.
(b) Subject only Sub-Licensor’s Right to clause (c) belowTerminate: Notwithstanding any other provision of this Agreement, the Collateral Manager may resign, upon 60 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to the Issuer) and the Trustee (and the Issuer shall direct the Trustee to distribute a copy of such notice to the Holders within five (5) Business Days of receipt); provided that the Collateral Manager Sub-Licensor shall have the right to resign immediately upon terminate this Agreement at any time by giving written notice to Sub-Licensee if:
(i) unless prohibited by Law, Sub-Licensee fails to pay Sub-Licensor an Earned Dividend when due, and remains in default not less than thirty (30) days after being notified in writing to make such payment;
(ii) Sub-Licensee breaches this Agreement and (if such breach is curable) fails to cure such breach within thirty (30) days of receipt of written notice from Sub-Licensor that describes the effectiveness breach in reasonable particularly;
(iii) Sub-Licensee (A) becomes insolvent or admits its inability to pay its debts generally as they become due; (B) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five (45) days after filing; (C) is dissolved or liquidated or takes any corporate action for such purpose; (D) makes a general assignment for the benefit of creditors; or (E) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material change in applicable law or regulations which renders the performance by the Collateral Manager portion of its duties hereunder property or under the Indenture to be a violation of such law or regulation.business;
(civ) No resignation Sub-Licensee challenges, or removal assists others in challenging, the validity or GHSC’s ownership of any the Collateral Manager pursuant to this Agreement shall be effective until GHSC Trademarks during the date as of which a successor Collateral Manager shall have been appointed and approved and has accepted and assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”).Term;
(dv) Promptly after notice of Sub-Licensee produces, manufactures, purchases, advertises, performs, promotes, sells, or distributes any removal under Section 14 product, or performs any resignation of service, in association with the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager GHSC Trademarks not in accordance with the procedures set forth this Agreement and/or not in clause (e) belowcompliance with Laws; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.or
(evi) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(g) If this Seed License Agreement is terminated pursuant to this Section 12, such termination shall be without for any further liability or obligation of either party to the other, except as provided in clause (h) belowreason.
(h) Sections 6, 7 (with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to this Section 12 or Section 14.
Appears in 1 contract
Samples: Rights Agreement
Term Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force until the first of the following occurs: (i) the final payment in full of the Debt and the termination of the Indenture in accordance with its terms; (ii) the liquidation of the Assets and the final distribution of the proceeds of such liquidation pursuant to the Noteholders, (ii) the payment in full terms of the Notes, and the satisfaction and discharge of the Indenture in accordance with its terms Indenture; or (iii) the early termination of this Agreement in accordance with Section 12(b), clause (c), (d), (eb) or (fc) of this Section 12 or Section 1414 of this Agreement.
(b) Subject only to clause (c) belowThis Agreement may be terminated without cause by the Collateral Manager, and the Collateral Manager may resign, resign upon 60 90 days’ prior written notice to the Issuer (or such shorter notice as is acceptable to Issuer, the Issuer) and the Collateral Trustee (and the Issuer shall direct the Trustee to distribute a copy of who will forward such notice to each Holder), and the Holders within five (5) Business Days of receipt)Rating Agency; provided provided, however, that the Collateral Manager shall have the right to resign immediately upon the effectiveness of any material change in applicable law or regulations which renders the performance by the Collateral Manager of its duties hereunder under this Collateral Management Agreement or under the Indenture to be a violation of such law or regulation.
(c) . No such termination or resignation or removal of the Collateral Manager pursuant to this Agreement shall be effective until the date as of which a successor Collateral Manager collateral manager shall have been appointed in accordance with this Agreement and approved delivered an instrument of acceptance to the Issuer and the resigned Collateral Manager and the successor collateral manager has accepted and effectively assumed all of the Collateral Manager’s duties and obligations pursuant to this Agreement in writing (an “Instrument of Acceptance”)Agreement.
(d) Promptly after notice of any removal under Section 14 or any resignation of the Collateral Manager that is to take place while any of the Notes are Outstanding, the Issuer shall transmit or cause the Trustee to transmit copies of such notice to the Holders and each Rating Agency and shall appoint a successor Collateral Manager in accordance with the procedures set forth in clause (e) below; provided that such successor Collateral Manager (i) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (ii) is legally qualified and has the capacity to assume all of the responsibilities, duties and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (iii) has agreed to coordinate with the replaced Collateral Manager regarding communications with the Rating Agencies, (iv) does not cause or result in the Issuer becoming, or require the pool of Assets to be registered as, an investment company under the 1940 Act and (v) with respect to which the Global Rating Agency Condition has been satisfied.
(e) A Majority of the Controlling Class will nominate a successor Collateral Manager that meets the criteria set forth in clause (d) above (other than subclause (v) thereof) following the notice of the resignation or removal of the Collateral Manager and such proposed successor will be appointed the successor Collateral Manager by the Issuer; provided that the Global Rating Agency Condition has been satisfied with respect thereto.
(f) The successor Collateral Manager shall be entitled to such Collateral Management Fee set forth in Sections 8(b). Upon the later of the expiration of the applicable notice periods with respect to termination specified in this Section 12 or in Section 14 and the acceptance of its appointment hereunder by the successor Collateral Manager, all authority and power of the Collateral Manager hereunder, whether with respect to the Assets or otherwise, shall automatically and without action by any person or entity pass to and be vested in the successor Collateral Manager. The Issuer, the Trustee and the successor Collateral Manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and as shall be necessary to effect any such succession.
(gc) If this Agreement is terminated pursuant to this Section 12, such termination shall be without any further liability or obligation of either party to the other, except as provided in Sections 8(c), 10, 15 and 22 of this Agreement, which provisions shall survive the termination of this Agreement.
(d) Promptly after notice of any removal for Cause pursuant to Section 14 hereof or resignation of the Collateral Manager pursuant to this Section 12 while any Debt is Outstanding, the Issuer shall:
(i) transmit copies of such notice to the Collateral Trustee (who shall forward a copy of such notice to the Holders), the Fiscal Agent and the Rating Agency; and
(ii) at the direction of a Majority of the Preferred Shares appoint as a successor collateral manager any institution that (A) has demonstrated an ability to professionally and competently perform duties similar to those imposed upon the Collateral Manager hereunder, (B) is legally qualified and has the capacity to assume all of the duties, responsibilities and obligations of the Collateral Manager hereunder and under the applicable terms of the Indenture, (C) does not cause the Issuer or the pool of Assets to become required to register under the Investment Company Act, (D) has been approved by a Majority of the Controlling Class and a Majority of the Preferred Shares (provided, for the avoidance of doubt, that if a Majority of the Controlling Class or a Majority of the Preferred Shares has nominated such successor, it shall be deemed to have approved of such successor) and (E) does not by its appointment cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or subject to U.S. federal, state or local income tax on a net income basis (including any tax liability imposed under Section 1446 of the Code).
(e) If (i) a Majority of the Preferred Shares fails to nominate a successor within 30 days of initial notice of the resignation or removal of the Collateral Manager or (ii) a Majority of the Controlling Class does not approve the proposed successor nominated by the holders of the Preferred Shares within 10 days of the date of the notice of such nomination, then a Majority of the Controlling Class shall, within 60 days of the failure described in clause (hi) belowor (ii) of this sentence, as the case may be, nominate a successor Xxxxxxxxxx Manager that meets the criteria set forth in clause (d)(ii) above. If a Majority of the Preferred Shares approves such proposed successor nominated pursuant to the preceding sentence, such nominee shall become the Collateral Manager. If no successor Collateral Manager is appointed within 90 days (or, in the event of a change in applicable law or regulation which renders the performance by the resigning Collateral Manager of its duties under this Agreement or the Indenture to be a violation of such law or regulation, within 30 days) following the termination or resignation of the Collateral Manager, any of the Collateral Manager, a Majority of the Preferred Shares and the Majority of the Controlling Class shall have the right to petition a court of competent jurisdiction to appoint a successor Xxxxxxxxxx Manager, in either such case whose appointment shall become effective after such successor has accepted its appointment and without the consent of any Holder of any Debt.
(f) Any successor Collateral Manager shall be entitled to the Base Management Fee and the Subordinated Management Fee accruing from the effective date of its appointment. No compensation payable to such successor Collateral Manager shall be greater than such components of the Management Fee without the prior written consent of 100% of the Holders of each Class of Debt, including Collateral Manager Debt.
(g) The Issuer, the Collateral Trustee and the successor collateral manager shall take such action (or cause the outgoing Collateral Manager to take such action) consistent with this Agreement and the terms of the Indenture applicable to the Collateral Manager, as shall be necessary to effectuate any such succession. Promptly following the appointment of a successor collateral manager in accordance with the foregoing, the Issuer shall provide written notice thereof to the Rating Agency.
(h) Sections 6In the event of removal of the Collateral Manager pursuant to this Agreement by the Issuer, 7 the Issuer shall have all of the rights and remedies available with respect thereto at law or equity, and, without limiting the foregoing, the Issuer may by notice in writing to the Collateral Manager as provided under this Agreement terminate all the rights and obligations of the Collateral Manager under this Agreement (except those that survive termination pursuant to Section 12(c) above). Upon expiration of the applicable notice period with respect to any indemnity or insurance provided thereunder), 8 (with respect to any accrued and unpaid Collateral Management Fees) 10, 12(g), 15, 17, 21, 22, 23 and 25 shall survive any termination of this Agreement pursuant to specified in this Section 12 or Section 1414 of this Agreement, as applicable, all authority and power of the Collateral Manager under this Agreement, whether with respect to the Assets or otherwise, shall automatically and without further action by any person or entity pass to and be vested in the successor collateral manager upon the appointment thereof. Nevertheless, the Collateral Manager shall take such steps as may be reasonably necessary to transfer such authority and power.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Capital Corp)
